1 MINUTES OF THE REGULAR MEETING OF THE BOARD OF ZONING APPEALS OF 2 HENRICO COUNTY, HELD IN THE COUNTY ADMINISTRATION BUILDING IN THE 3 HENRICO COUNTY GOVERNMENT COMPLEX, ON THURSDAY, JULY 26, 2001, AT 4 9:00 A.M., NOTICE HAVING BEEN PUBLISHED IN THE RICHMOND TIMES- 5 DISPATCH ON JULY 5 AND 12, 2001. 6 Members Present: Richard Kirkland, Chairman Daniel Balfour, Vice-Chairman Gene L. McKinney, C.P.C., C.B.Z.A. James W. Nunnally R. A. Wright

Also Present: Benjamin Blankinship, Secretary Susan W. Blackburn, County Planner II Priscilla M. Parker, Recording Secretary

7 8 Mr. Kirkland - Welcome, ladies and gentlemen, to the July meeting of the 9 Board of Zoning Appeals. Before we get started, I’ll have the Secretary read the rules. 10 11 Mr. Blankinship - Good morning, Mr. Chairman, Members of the Board, ladies 12 and gentlemen. The rules for this meeting are as follows. The Secretary, myself, will 13 call each case. Then the applicant will come to the podium to present the case. At that 14 time I’ll ask all those who intend to speak, in favor or opposition, to stand, and they will 15 be sworn in. The applicants will then present their testimony. When the applicant is 16 finished, anyone else will be given an opportunity to speak. After everyone has spoken, 17 the applicant, and only the applicant, will be given the opportunity for rebuttal. After 18 hearing the case, and asking questions, the Board will take the matter under 19 advisement. They will render a decision at the end of the meeting. If you wish to know 20 what their decision is, you may stay until the end of the meeting, or you may call the 21 Planning Office at the end of the day. This meeting is being tape recorded, so we will 22 ask everyone who speaks, to speak directly into the microphone on the podium, and to 23 state your name for the record. Out in the foyer, there are two binders, which have the 24 staff report for each case, including the conditions suggested by the staff. Mr. 25 Chairman, I believe we have one request of an unusual nature. 26 27 Mr. Kirkland - No withdrawals or deferrals? 28 29 Mr. Blankinship - No sir. 30 31 Mr. Kirkland - Yes, we do have one request of an unusual nature. Mr. 32 Nunnally, if you’d like to make your motion, please. 33

July 26, 2001 34 Mr. Nunnally - Mr. Chairman, I’d like to make a motion that we re-hear the 35 case that was presented to us last month, A-83-2001, in the name of Lois McGuire 36 Durrette, that it be re-heard again at next month’s meeting. 37 38 Mr. Kirkland - What date is that Mr. Secretary? 39 40 Mr. Blankinship - August 23, 2001. 41 42 Mr. Kirkland - Second by Mr. McKinney. All those in favor, say aye. All 43 those opposed? Okay, we will re-hear it next month, August 23, 2001. 44 45 On a motion by Mr. Nunnally, seconded by Mr. McKinney, the Board granted the 46 request for a re-hearing of variance application A-83-2001, to be re-heard on August 23, 47 2001 at 9:00 am. 48 49 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 50 Negative: 0 51 Absent: 0 52 53 Ms. Durrette, you might want to check with Mr. Blankinship 54 or the office to find out, you have to send notices out again like you did last time. 55 56 Mr. Kirkland - Okay, if you would, call the first case. 57 58 A - 93-2001 ROY CRAIG HART requests a variance from Section 24-94 of 59 Chapter 24 of the County Code to allow two carports to remain & 60 build an addition at 5202 Antigo Road (Hechler Village) (Tax Parcel 61 147-9-BB-35), zoned R-3, One-family Residence District (Fairfield). 62 The minimum side yard setback and total side yard setback are not 63 met. The applicant has 4 feet minimum side yard setback and 9 feet 64 total side yard setback, where the Code requires 12 feet minimum 65 side yard setback and 30 feet total side yard setback. The 66 applicant requests variances of 8 feet minimum side yard setback 67 and 21 feet total side yard setback. 68 69 Mr. Kirkland - Is the applicant here? Come forward please. 70 71 We’ve heard all the evidence on this case. 72 73 Mr. Blankinship - Yes sir, this was deferred with a request that the applicant 74 produce more specific measurements of the property. 75 76 Mr. Kirkland - Let me have you sworn in first. If you would, raise your right 77 hand. And would you state your name. 78 79 Mr. Blankinship - Do you swear that the testimony you are about to give is the

July 26, 2001 2 80 truth, the whole truth, and nothing but the truth, so help you God? 81 82 Mr. Hart - Yes I do. Roy Hart. 83 84 Mr. Kirkland - And would you hand that to him now. We heard the 85 testimony last month, and we had asked for a line survey. What did you find out. 86 87 Mr. Hart - What he has right there is the information that what exists 88 there today. That’s the property lines and the setbacks that are there. 89 90 Mr. Blankinship - This is the first I’ve seen of this, so if you’ll just allow me a 91 minute. 92 93 Mr. Kirkland - We can bear with you. 94 95 Mr. Hart - We just got our hands on it yesterday. 96 97 Mr. Blankinship - We had included in the notice letters that the applicant had 4 98 feet minimum side yard setback and 9 feet total side yard setback. According to this, 99 the lesser of the 2 side yards is 2.9, and the total is 7.0, so it is considerably tighter than 100 we had thought last month, so it’s a good thing we did this, but I don’t see any 101 qualitative change to the request. It’s still the same fundamental issues that were 102 before you last month. 103 104 The house hasn’t moved. 105 106 Mr. Blankinship - No, but the tolerances are all somewhat closer than we 107 thought they were before, so this should be “the applicant has 2.9 feet minimum side 108 yard setback, and 7.0 feet of total side yard setback, where the Code requires12 and 109 30. The applicant requests 9.1 feet minimum side yard setback and 23.0 feet total side 110 yard setback. 111 112 Mr. Kirkland - That’s all we needed, right? 113 114 Mr. Blankinship - That’s all we need. 115 116 Mr. Kirkland - Okay, that concludes the case. We’ll rule on it at the end. 117 118 After an advertised public hearing and on a motion by Mr. McKinney, seconded by Mr. 119 Nunnally, the Board denied application A-93-2001 for a variance to allow two carports 120 to remain & build an addition at 5202 Antigo Road (Hechler Village) (Tax Parcel 147-9- 121 BB-35). 122 123 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 124 Negative: 0 125 Absent: 0

July 26, 2001 3 126 127 The Board denied your request as it found from the evidence presented that authorizing 128 this variance would be of substantial detriment to adjacent property or would materially 129 impair the purpose of the zoning regulations. 130 131 Mr. Kirkland - Next case. New applications. 132 133 A - 95-2001 CHERYL TOWNER AND JEFFERY CUMMING request a variance 134 from Section 24-94 of Chapter 24 of the County Code to enclose 135 the existing deck at 4604 Village Run Court (Village at Innsbrook) 136 (Tax Parcel 38-6-A-27), zoned R-3AC, One-family Residence 137 District (Conditional) (Three Chopt). The rear yard setback is not 138 met. The applicant has 32 feet rear yard setback, where the Code 139 requires 35 feet rear yard setback. The applicant requests a 140 variance of 3 feet rear yard setback. 141 142 Mr. Kirkland - Anyone else wish to speak on this case? If you would, 143 ma’am, raise your right hand and be sworn in. 144 145 Mr. Blankinship - Do you swear that the testimony you are about to give is the 146 truth, the whole truth, and nothing but the truth, so help you God? 147 148 Ms. Towner - I do. 149 150 Mr. Kirkland - Would you state your name. Have all your notices been 151 turned in according to the Code? We have them in the file. State your case. 152 153 Ms. Towner - Yes. Cheryl Towner. We are adding onto our house to 154 make room for our second baby. As part of that project, we want to screen in our deck, 155 mainly so the kids will have a place to play out of the sun and rain and the mosquito 156 problem, and we have tons of oak trees and acorns drop on your head and everything 157 else, and we just want the extra back yard area. We weren’t aware of the rear yard line 158 information until they started the project, so I’ve got contractors sitting around waiting to 159 tie in the roofline. Our neighbors are very supportive; as a matter of fact one of them 160 gave it to me in writing that it’s an enhancement of property values. They’ve all called 161 and asked if there’s anything they can do to help. 162 163 Is there any screening to the rear of your property, trees, bushes, etc.? 164 165 Ms. Towner - We back up to Franklin Federal Bank, and it’s all woods. 166 167 And the property behind you is the bank? 168 169 Ms. Towner - Right. The only people who would be able to see this would 170 be Mr. and Mrs. Garner, they’re on the corner of Village Run and Village Run Court, and 171 they have no objections.

July 26, 2001 4 172 173 They’re already looking at the deck, aren’t they? 174 175 Ms. Towner - Yes. Exactly. 176 177 Mr. Kirkland - Any other questions by Board members? Anyone else wish 178 to speak? That concludes the case ma’am. 179 180 After an advertised public hearing and on a motion by Mr. Wright, seconded by Mr. 181 Nunnally, the Board granted application A-95-2001 for a variance to enclose the 182 existing deck at 4604 Village Run Court (Village at Innsbrook) (Tax Parcel 38-6-A-27). 183 The Board granted the variance subject to the following condition: 184 185 1. This variance applies only to enclosing the existing deck. All other applicable 186 regulations of the County Code shall remain in force. 187 188 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 189 Negative: 0 190 Absent: 0 191 192 The Board granted this request, as it found from the evidence presented that, due to the 193 unique circumstances of the subject property, strict application of the County Code 194 would produce undue hardship not generally shared by other properties in the area, and 195 authorizing this variance will neither cause a substantial detriment to adjacent property 196 nor materially impair the purpose of the zoning regulations. 197 198 Mr. Kirkland - Next one sir. 199 200 A - 96-2001 HERBERT E. KENNEDY requests a variance from Sections 24-94 201 and 24-9 of Chapter 24 of the County Code to build a one-family 202 dwelling at 10800 Chicopee Road (Tax Parcel 38-A-25 (part)), 203 zoned A-1, Agricultural District (Three Chopt). The lot width 204 requirement and public street frontage requirement are not met. 205 The applicant has 0 feet public street frontage and 35 feet of lot 206 width, where the Code requires 50 feet public street frontage and 207 150 feet of lot width. The applicant requests a variance of 50 feet 208 public street frontage and 115 feet of lot width. 209 210 Mr. Kirkland - Is there anyone else here who wishes to speak on this case? 211 If you would, sir, raise your right hand and be sworn in. 212 213 Mr. Blankinship - Do you swear that the testimony you are about to give is the 214 truth, the whole truth, and nothing but the truth, so help you God? 215 216 Mr. Kennedy - Yes sir. 217 218 Mr. Kirkland - Would you state your name for the record. Have all your

July 26, 2001 5 219 notices been turned in? Okay, state your case. 220 221 Mr. Kennedy - Herbert E. Kennedy. Yes sir. We request a variance to build 222 a one-family dwelling on this piece of property shown on the screen up there. This 223 piece of property has been in the Kennedy family for over 40 years. I live across the 224 road from the property that we’re considering, and my mother lives across the road too. 225 If this variance is allowed, my intent is to give this parcel of land to my granddaughter, 226 whom we raised, and she’s going to build a house there she hopes. She’s already been 227 pre-approved by a mortgage company. We’re talking with a builder. We even have 228 public water available; we will have to put in a septic system. I have made direct 229 contact with all of the adjoining property owners; they have no objection. As a matter of 230 fact, they stated that they would rather have one single dwelling on this large piece of 231 land rather than back up to a subdivision. We can meet all of the suggestions that were 232 made by the Planning Committee, and we’re ready to go. 233 234 Do you mean the suggested conditions? 235 236 Mr. Kennedy - Yes. If you folks have any questions, I’ll be glad to answer 237 them for you. 238 239 Are you going to access this on Chickopee Road, which 240 dead-ends right at the property? 241 242 Mr. Kennedy - Right, it dead-ends, and we’ve extended Chickopee Road 243 and we use it as our driveway. We gave ourselves a 50-foot right-of-way by extending 244 Chickopee; it’s not a public road. This piece of property also faces the driveway road. 245 246 That condition number 3 says you would have to connect to 247 the public sewer. There’s no public sewer that serves the property? 248 249 Mr. Kennedy - That’s right. If you look at the first page here, the report, it 250 talks about utilities, and it says ‘water and private septic.’ 251 252 We’d have to change that condition then. 253 254 Mr. Blankinship - Yes sir, we’ll have to add the health department condition. 255 We have a standard condition that covers that. 256 257 Mr. Kirkland - Any other questions? Anyone else wish to speak? That 258 concludes the case sir. 259 260 After an advertised public hearing and on a motion by Mr. Wright, seconded by Mr. 261 Nunnally, the Board granted application A-96-2001 for a variance to build a one-family 262 dwelling at 10800 Chicopee Road (Tax Parcel 38-A-25 (part)). The Board granted the 263 variance subject to the following conditions: 264

July 26, 2001 6 265 1. This variance applies only to the public street frontage and lot width 266 requirements. All other applicable regulations of the County Code shall remain in force. 267 268 2. At the time of building permit application, the applicant shall submit the 269 necessary information to the Department of Public Works to ensure compliance with the 270 requirements of the Chesapeake Bay Preservation Act and the code requirements for 271 water quality standards. 272 273 3. Connection shall be made to public water. 274 275 4. Approval of this request does not imply that a building permit will be issued. 276 Building permit approval is contingent on Health Department requirements, including, 277 but not limited to, soil evaluation for a septic drainfield and reserve area, and approval 278 of a well location. 279 280 5. The applicant shall present proof with the building permit application that a legal 281 access to the property has been obtained. 282 283 6. The owners of the property, and their heirs or assigns, shall accept responsibility 284 for maintaining access to the property until such a time as the access is improved to 285 County standards and accepted into the County road system for maintenance. 286 287 7. The applicant shall locate all improvements on the lot so that minimum yard 288 requirements are met subsequent to the dedication and construction of a public street. 289 290 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 291 Negative: 0 292 Absent: 0 293 294 The Board granted this request, as it found from the evidence presented that, due to the 295 unique circumstances of the subject property, strict application of the County Code 296 would produce undue hardship not generally shared by other properties in the area, and 297 authorizing this variance will neither cause a substantial detriment to adjacent property 298 nor materially impair the purpose of the zoning regulations. 299 300 Mr. Kirkland - Next one. 301 302 A - 97-2001 HOWARD F. COSSEY requests a variance from Sections 24-95(i)2 303 and (t) of Chapter 24 of the County Code to build a single-family 304 dwelling at 9820 Osborne Landing (Newstead Farms) (Tax Parcel 305 283-1-2-12A), zoned A-1, Agricultural District (Varina). The 306 accessory structure location and total lot area requirement outside a 307 flood plain are not met. The applicant has 0 acres total lot area 308 outside the flood plain and an accessory structure in the front yard, 309 where the Code requires 1 acre total lot area outside the flood plain, 310 and allows accessory structures in the rear yard. The applicant

July 26, 2001 7 311 requests a variance of 1-acre total lot area outside the flood plain 312 and to allow an accessory structure in the front yard. 313 314 Mr. Kirkland - Anyone else wish to speak on this case? If you would sir, 315 raise your right hand and be sworn in. 316 317 Mr. Blankinship - Do you swear that the testimony you are about to give is the 318 truth, the whole truth, and nothing but the truth, so help you God? 319 320 Mr. Cossey - I do. 321 322 Mr. Kirkland - Would you state your name for the record. Have all adjacent 323 landowners been contacted? Yes we have. Okay, state your case. 324 325 Mr. Cossey - Howard F. Cossey. Yes sir, I think you have it in your file. I 326 brought it up here where they have. Okay, I want to correct a couple of things before I 327 start, and that is, the attached garage will be attached to the house, which means it’s all 328 one structure we’re talking about now, so we can do away with this garage being 329 separated from the house. It will be attached to the house, with a breezeway or 330 whatever, as many people have out there. 331 332 Mr. Kirkland - So this drawing here if ………… 333 334 Mr. Cossey - …………… not quite correct. You can draw a line between 335 the garage and the house, so that there will be a walkway between there, covered with 336 roof. You see what I’m talking about? The other one, I don’t know if you have this total 337 thing, it should be there, is the flood plain elevation, they tell me is 20 feet. That’s a 338 FEMA number, and the existing finished floor of the existing residence is 21.1, which 339 puts it up out of the water. 340 341 Mr. Kirkland - Can I ask you one question? What is your flood plain 342 designation, like a letter of the alphabet, they’re EF’s, AF’s. 343 344 Mr. Cossey - FEMA says it’s A, but I have numbers here that go back, 345 those numbers keep creeping up, and FEMA finally said they’re going to make it 20 346 feet, which is a zone A. 347 348 Mr. Kirkland - Mr. Blankinship, what is it, in the flood plain, don’t they have 349 to be a certain distance up and different classifications. 350 351 Mr. Blankinship - They have to be 1 foot above the flood level ……….. 352 353 Mr. Kirkland - Even in, they’re different, they’re A’s or B’s, they’re different 354 ways of doing this. 355 356 Mr. Blankinship - I don’t think any of them are more than 1 foot though. I think

July 26, 2001 8 357 the letters really designate how they determine the flood plain designation. 358 359 Mr. Kirkland - I know that near the water, if you’re near a river or 360 something, they vary tremendously. 361 362 Mr. Blankinship - Okay. Where you have tidal influences I guess. 363 364 Mr. Kirkland - Okay, continue on sir; I’m sorry. 365 366 Mr. Cossey - Okay, no problem. Zone A is what is listed on here. I have a 367 little scheme of this thing if you need to have a copy of that, it’s FEMA number. The 368 other thing I want to point out is, as you can see there, the whole focus of the houses 369 out there is on the James River. That’s the major part of it. So this house is meant to 370 sort of fit the neighborhood, and I’m trying to do a lot of other things at the same time. 371 One is, the existing house is nonconforming. The existing house has a basement. All 372 things considered, if I build the new house behind it, I’m further away from the river, 373 which makes everything better to all the people I heard of, and while I’m at that, I do 374 have one question. In your evaluation, we have a statement that says, ‘granting a 375 variance from that provision may be considered a “use variance,” which is prohibited by 376 the Code of Virginia.’ I haven’t found anybody who knows what a “use variance” is. I 377 don’t know what that is, so I can’t speak to that. Nobody seems to know. 378 379 Mr. Kirkland - Mr. Blankinship, would you answer his question. 380 381 Mr. Blankinship - A “use variance” is simply a variance from a provision of the 382 Code that restricts uses. For the most part, variances are granted from side yard 383 setbacks, lot area requirements, street frontage requirements, mostly dimensional 384 requirements. The State Code defines a variance as an adjustment of the rules in one 385 of those things, the size of the property, the location of buildings on the property, and 386 the law is specific that the Board cannot grant a variance to allow a use that would not 387 otherwise be allowed. For example, if you had agricultural land and you applied for a 388 variance to put a convenience store there, they can’t do that by variance. You have to 389 go through a different process, through a rezoning, to change that. The question of the 390 flood plain, it’s a use regulation that says you can’t have a new dwelling in the flood 391 plain, so from that perspective, it appears that what you’re requesting is a “use 392 variance.” It can also be looked at that the flood plain is a measurement; it’s a matter of 393 height and distance from the river, and so ………….. 394 395 Mr. Cossey - ……… and topography. 396 397 Mr. Blankinship - ………… it could be looked at the other way, that it is a 398 legitimate variance, but that’s a point that staff felt it’s important for the Board to be 399 aware of and to be thinking about, and not just go along with business as usual. 400 401 Mr. Cossey - Now that that’s defined, then yes, I would be after relief on 402 size and topography. Also, do you have the letter from the Department of Public Works,

July 26, 2001 9 403 showing that I’m bettering the situation? 404 405 Mr. Blankinship - The letter’s in the file; I don’t know if it was included in the 406 packets. 407 408 Mr. Kirkland - We didn’t receive one in our packets. 409 410 Mr. Cossey - I’ll give you one here. 411 412 Mr. Blankinship - It’s in the file. 413 414 Mr. Kirkland - Proceed. 415 416 Mr. Cossey - To make things better, and still satisfy a lot of the ordinances 417 and rules and everything, by building a new house, I’m getting rid of some problems. 418 One is, the existing house is nonconforming, and the RPA, resource protection area, 419 and also as far as insurance goes, the existing house has a basement; if I pull back, the 420 new house will not have a basement so we’re getting rid of that problem, which is 421 pointed out in the rules of the zoning. 422 423 Are you currently residing in your existing house? Has it 424 flooded any time in the past few years? 425 426 Mr. Cossey - When we’re say the past few years, we’re talking the flood 427 plain was established back in Agnes in 1972. 428 429 So it did flood in ’72? 430 431 Mr. Cossey - The basement flooded. It’s never been up into the house. I 432 have evidence from talking with neighbors, and as you can see this number I just gave 433 you on this plot plan, the flood plain is 20 feet. That’s incidentally greater, and I have 434 some information on that, than what it originally started out with Henrico measurements, 435 and the finished floor level of the existing house is 21.1 feet, as the new house will also 436 comply with being up out of it. One ha5dship I have, if the existing house has to be the 437 way I go, is, I don’t know if anybody is in insurance or not, but they cover nothing in a 438 basement. You can get all the flood insurance you want, and nothing in the basement 439 is covered, so there to me is a hardship. I don’t know whether that’s size, topography, 440 or rules or whatever it is, but to me it’s a hardship. I’m building a new house, I’ll get rid 441 of that problem. Another thing I think, as we talk about here, 20 foot and 21 foot, 442 compared to some of the things around, let’s take the First Market Bank down in 443 Shockoe Bottom. They built the floodwall. They’re building this First Market down here, 444 just a few feet above the water. Up here’s the floodwall. If it ever tops over that, they’re 445 still in the flood plain. But where I’m at, I’m one foot in the top of the flood plain, not 446 down near the bottom, and I think that’s very important when it comes to size, because 447 the house where I’m living, the floor has never been in a flood, and this new house 448 won’t be in the 100-year flood plain, and I think that’s an important factor. However, in

July 26, 2001 10 449 some cases, people try to make one rule apply to everything. 450 451 Mr. Kirkland - May I ask you a question before you go any further, and Mr. 452 Blankinship also. I see here the flood plain line is drawn through the corner of the 453 house, is that correct? 454 455 Mr. Blankinship - The RPA line? 456 457 Mr. Kirkland - Yes, the RPA line is through the corner of the new proposed 458 home, correct? 459 460 Mr. Cossey - That letter that I gave you from the Department of Public 461 Works clears that. I can’t say for sure, because when I laid it out, it’s going to be about 462 a foot on each side back into the RPA zone, but very minimal. 463 464 Mr. Kirkland - But it’s going to be in there? 465 466 Mr. Cossey - Very minimal. 467 468 Mr. Kirkland - That’s all I need to know. 469 470 Mr. Cossey - One of the reasons why that has to be done, if you see the 471 well, I guess you have a copy of that, the well and the septic tank, which incidentally 472 they’ve asked for in the septic tank area, it was recently rebuilt, and it’s been oversized 473 with 2 tanks and good for a 5-bedroom house, although that’s not what I’m asking for. 474 Setting this house right in between these sort of dictated that I encroach just a bit into 475 that RPA line. I have to have a talk with Mr. Stringer, the minimum I can get by with, the 476 rules may say 10, but the minimum I can get by with is 7 feet from the septic tank and 7 477 feet from the well, and we’ve discussed this, and he says that’s okay. So that allowed 478 me to put this house right in between the 2 of them, still stay far enough from the 479 existing house, and I encroached slightly into the RPA. 480 481 Are you saying the new house won’t have a basement? So 482 the condition number 6 wouldn’t apply? 483 484 Mr. Cossey - Condition # 6? It will apply. 485 486 You have a crawl space or what? 487 488 Mr. Cossey - That will be met. All these conditions will be met. 489 490 Mr. Blankinship - I would suggest, Mr. Balfour, on condition # 4, that we strike 491 the words “including basement” and add a second sentence reading, “The house shall 492 not have a basement.” 493 494 Mr. Kirkland - That everything?

July 26, 2001 11 495 496 Mr. Cossey - I have a copy of the septic permit if you need it. 497 498 Mr. Kirkland - I think we’ve probably got that in the file. 499 500 Mr. Cossey - And then I have some old records showing how the flood 501 plain has increased from 18.9 feet in Agnes, to 19.3 feet, to when FEMA came in and 502 put their black mark on it and said 20 feet. So the flood plain is a little bit nebulous as 503 far as measurements go. 504 505 Mr. Blankinship - As development occurs, you get more impervious area and 506 the flood plain rises. 507 508 Mr. Cossey - Or the measurements are corrected. I don’t know how all 509 that came about. I’m just going back in the records. 510 511 Mr. Kirkland - Any other questions by Board members? Does anyone else 512 want to speak on this case? That concludes the case sir. 513 514 After an advertised public hearing and on a motion by Mr. Nunnally, seconded by Mr. 515 Wright, the Board granted application A-97-2001 for a variance to build a single-family 516 dwelling at 9820 Osborne Landing (Newstead Farms) (Tax Parcel 283-1-2-12A). The 517 Board granted the variance subject to the following conditions: 518 519 1. Only the improvements shown on the plan filed with the application, as amended 520 at the meeting, may be constructed pursuant to this approval. No substantial changes 521 or additions to the layout may be made without the approval of the Board of Zoning 522 Appeals. Any additional improvements shall comply with the applicable regulations of 523 the County Code. 524 525 2. At the time of building permit application, the applicant shall submit the 526 necessary information to the Department of Public Works to ensure compliance with the 527 requirements of the Chesapeake Bay Preservation Act and the code requirements for 528 water quality standards. 529 530 3. Approval of this request does not imply that a building permit will be issued. 531 Building permit approval is contingent on Health Department requirements, including, 532 but not limited to, soil evaluation for a septic drainfield and reserve area, and approval 533 of a well location. 534 535 4. The elevation of the lowest floor of the building shall be a minimum of one foot 536 above the base flood elevation. The house shall not have a basement. 537 538 5. Electrical, heating, ventilation, plumbing and air conditioning equipment and other 539 service facilities shall be designed and/or located so as to prevent water from entering 540 or accumulating within the components during conditions of flooding.

July 26, 2001 12 541 542 6. All enclosed areas below the lowest floor that are subject to flooding shall be 543 designed to automatically equalize hydrostatic flood forces on exterior walls by allowing 544 for the entry and exit of floodwaters. Designs for meeting this requirement must either 545 be certified by a registered professional engineer or architect or must meet or exceed 546 the following minimum criteria: (i) A minimum of two openings having a total net area of 547 not less than one square inch for every square foot of enclosed area subject to flooding 548 shall be provided; (ii) The bottom of all openings shall be no higher than one foot above 549 grade; (iii) Openings may be equipped with screens, louvers or other coverings or 550 devices, provided that they permit the automatic entry and exit of floodwaters. 551 552 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 553 Negative: 0 554 Absent: 0 555 556 The Board granted this request, as it found from the evidence presented that, due to the 557 unique circumstances of the subject property, strict application of the County Code 558 would produce undue hardship not generally shared by other properties in the area, and 559 authorizing this variance will neither cause a substantial detriment to adjacent property 560 nor materially impair the purpose of the zoning regulations. 561 562 Mr. Kirkland - Next case sir. 563 564 A - 98-2001 GLORIA J. TYLER requests a variance from Section 24-95(q)5 of 565 Chapter 24 of the County Code to add a sunroom at 6308 566 Springcrest Lane (Darbytown Meadows) (Tax Parcel 192-9-A-3), 567 zoned R-3C, One-family Residence District (Conditional) (Varina). 568 The rear yard setback is not met. The applicant has 28.5 feet rear 569 yard setback, where the Code requires 35 feet rear yard setback. 570 The applicant requests a variance of 6.5 feet rear yard setback. 571 572 Mr. Kirkland - Does anyone else wish to speak on this case? If you would 573 ma’am, raise your right hand and be sworn in. 574 575 Mr. Blankinship - Do you swear that the testimony you are about to give is the 576 truth, the whole truth, and nothing but the truth, so help you God? 577 578 Ms. Tyler - Yes I do. 579 580 Mr. Kirkland - Would you state your name for the record. Would you move 581 that mike a little closer to you. Have all adjacent landowners been contacted according 582 to the County Code? All right, we have them in the file. Proceed with your case. What 583 would you like to do? 584

July 26, 2001 13 585 Ms. Tyler - Gloria J. Tyler. Yes, they have been notified. I want to add a 586 sunroom onto the back of my house, and mainly for the purpose of just having 587 additional living space. 588 589 What size is your house now, Ms. Tyler? 590 591 Ms. Tyler - I think it’s like maybe 1300 square feet. 592 593 And how many rooms do you have in it? 594 595 Ms. Tyler - Seven. 596 597 How large is your family? 598 599 Ms. Tyler - When I first bought the house, it was just myself, and now my 600 son and my daughter-in-law and my grandson are living with me, and that’s the main 601 reason I want to add on. We need more space. 602 603 This 14 by 32 addition, is that just a sunroom, or does that 604 include a bath? 605 606 Ms. Tyler - Sunroom only. 607 608 What’s located to the rear of your property? 609 610 Ms. Tyler - St. Paul’s Pentecostal Church. 611 612 There are no houses close to the rear line? 613 614 Ms. Tyler - No, just the church itself in the rear. 615 616 Mr. Kirkland - Any other questions? Anyone else wish to speak? That 617 concludes the case ma’am. 618 619 After an advertised public hearing and on a motion by Mr. Nunnally, seconded by Mr. 620 Wright, the Board granted application A-98-2001 for a variance to add a sunroom at 621 6308 Springcrest Lane (Darbytown Meadows) (Tax Parcel 192-9-A-3). The Board 622 granted the variance subject to the following condition: 623 624 1. Only the improvements shown on the plan filed with the application may be 625 constructed pursuant to this approval. No substantial changes or additions to the layout 626 may be made without the approval of the Board of Zoning Appeals. Any additional 627 improvements shall comply with the applicable regulations of the County Code. 628 629 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 630 Negative: 0

July 26, 2001 14 631 Absent: 0 632 633 The Board granted this request, as it found from the evidence presented that, due to the 634 unique circumstances of the subject property, strict application of the County Code 635 would produce undue hardship not generally shared by other properties in the area, and 636 authorizing this variance will neither cause a substantial detriment to adjacent property 637 nor materially impair the purpose of the zoning regulations. 638 639 Mr. Kirkland - Next one sir. 640 641 A -100-2001 MICHAEL A. WATERS requests a variance from Section 24- 642 95(i)(2) of Chapter 24 of the County Code to build an addition at 643 9771 Hoke Brady Road (Tax Parcel 276-A-20), zoned A-1, 644 Agricultural District (Varina). The accessory structure location 645 requirement is not met. The applicant has an existing pool and tool 646 shed that will be in the side yard, where the Code allows accessory 647 structures in the rear yard. The applicant requests a variance to 648 allow the pool and shed in the side yard. 649 650 Mr. Kirkland - Anyone else wish to speak on this case? If you would sir, 651 raise your right hand and be sworn in. 652 653 Mr. Blankinship - Do you swear that the testimony you are about to give is the 654 truth, the whole truth, and nothing but the truth, so help you God? 655 656 Mr. Waters - I do. 657 658 Mr. Kirkland - Would you state your name for the record. Have all adjacent 659 landowners been contacted? In the file. Proceed with your case. 660 661 Mr. Waters - Michael A. Waters. Yes Mr. Chairman. This is a relatively 662 simple matter, I hope, if I could move the pool and the garage, I could add the addition 663 without the variance request. I chose to add the addition on the back side, for aesthetic 664 reasons as the application states, but also the 2 practical reasons. One is that I would 665 lose a bathroom window if I did that. The other reason is because of the slope of the 666 land. I don’t believe it would conflict with the drain field, but because of the way the land 667 slopes, it could. I didn’t raise the question with the Health Department, but it could be a 668 problem. I’ll be glad to answer any questions you might have. One other point, if you 669 don’t mind. There are 2 existing homes on our street, which have pools. If you view 670 them from the street, they are in the side yard, and they’re very obvious. Our pool is in 671 the back yard; it cannot be seen from the house. When we first looked at this house, 672 we didn’t even know it had a pool. You can’t see it from the street. You can see it from 673 the air, obviously, and if there was a home on the property next to us, you could see it 674 from that property. If there were homes behind us, I assume you could see it from that 675 property as well. 676

July 26, 2001 15 677 Mr. Waters, what will the addition be used for? 678 679 Mr. Waters - The bedrooms that we have in the house are very small. 680 You can’t put a queen-sized bed in them, and what we’re trying to do, and my wife does 681 a lot of needlework. The other problem we have, is the way the house is constructed, 682 we have a combined living room, dining room, and right now, when my wife does 683 ironing, she ends up doing it in the dining room area. She’s a nurse, so she irons 684 uniforms all the time, so the idea was to use one existing bedroom as sort of a hallway, 685 but also as an ironing room, and then replace that bedroom with a new bedroom. This 686 would also allow us, we have 3 boys, and while none of them are living at home at the 687 present time, we don’t know exactly what the future holds, and we just wanted the extra 688 room. 689 690 Mr. Kirkland - Any other questions by Board members? Anyone else wish 691 to speak on this case? That concludes this case. 692 693 After an advertised public hearing and on a motion by Mr. Nunnally, seconded by Mr. 694 Wright, the Board granted application A-100-2001 for a variance to build an addition at 695 9771 Hoke Brady Road (Tax Parcel 276-A-20). The Board granted the variance subject 696 to the following condition: 697 698 1. Only the improvements shown on the plan filed with the application may be 699 constructed pursuant to this approval. No substantial changes or additions to the layout 700 may be made without the approval of the Board of Zoning Appeals. Any additional 701 improvements shall comply with the applicable regulations of the County Code. 702 703 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 704 Negative: 0 705 Absent: 0 706 707 The Board granted this request, as it found from the evidence presented that, due to the 708 unique circumstances of the subject property, strict application of the County Code 709 would produce undue hardship not generally shared by other properties in the area, and 710 authorizing this variance will neither cause a substantial detriment to adjacent property 711 nor materially impair the purpose of the zoning regulations. 712 713 Mr. Kirkland - Next case. 714 715 A -101-2001 SCOTT M. ALLEN requests a variance from Section 24-94 of 716 Chapter 24 of the County Code to enclose the existing deck at 717 12104 Loxton Court (Preston at Wyndham) (Tax Parcel 1-3-A-23), 718 zoned R-4C, One-family Residence District (Conditional) (Three 719 Chopt). The rear yard setback is not met. The applicant has 27 720 feet rear yard setback, where the Code requires 35 feet setback. 721 The applicant requests a variance of 8 feet rear yard setback. 722

July 26, 2001 16 723 Mr. Kirkland - Anyone else wish to speak on this? 724 725 Mr. Blankinship - Do you swear that the testimony you are about to give is the 726 truth, the whole truth, and nothing but the truth, so help you God? 727 728 Mr. Kirkland - Now you can say who you are. Have all your notices been 729 turned in? We have them in the file. Now you can tell us what you want. 730 731 Ms. Allen - Yes I do. I’m Michelle Allen. My husband Scott was called 732 away, out of town on business today. We would like to screen in an existing deck. We 733 have 2 small children, 3 months, and a 2-year-old, and would benefit from being able to 734 let them enjoy the outdoors with the protection of a screened in porch. You can’t see it 735 from this picture, but we have almost a pie-shaped yard, and one of our 2 rear property 736 lines backs up to 2 water retention areas. One is a saved area in the community, which 737 stays swampy most of the time, and behind that is a BMP, which collects a lot of water, 738 and we have a very bad mosquito problem, so we very much would like to screen that 739 porch in. As the notice says, we’re short about 8 feet on the closest corner, again 740 because of the irregularity of the lot line. It’s only a problem on the closest corner that 741 you can see on the map. We did consider, as the evaluation states, putting the 742 screened-in porch to the right of this, which would actually mean it would come off of 743 our family room instead of our sunroom. The problems that came up with that, is there’s 744 no exterior entrance. It would mean removing windows out of our family room to put in 745 a door, or it would mean going outside before you could come inside again, to leave the 746 existing deck and use that as a walkway to get to the porch. We don’t really feel that we 747 need both a deck and a screened-in porch, and both of those structures would be a little 748 overwhelming for the size of our house and the yard. We do have a screen of trees that 749 we have started on that back property line where the closest points are, to add privacy 750 between our home and our neighbor. 751 752 Mr. Kirkland - Any questions by Board members? 753 754 What did you line up for your husband to do since he left you 755 this job? 756 757 Ms. Allen - Well, unfortunately he gets called away a lot on business, so 758 I probably should have expected this. 759 760 Mr. Kirkland - Anyone else wish to speak on this case? That concludes the 761 case. 762 763 After an advertised public hearing and on a motion by Mr. Wright, seconded by Mr. 764 Balfour, the Board granted application A-101-2001 for a variance to enclose the 765 existing deck at 12104 Loxton Court (Preston at Wyndham) (Tax Parcel 1-3-A-23). The 766 Board granted the variance subject to the following condition: 767

July 26, 2001 17 768 1. This variance applies only to enclosing the existing deck. All other applicable 769 regulations of the County Code shall remain in force. 770 771 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 772 Negative: 0 773 Absent: 0 774 775 The Board granted this request, as it found from the evidence presented that, due to the 776 unique circumstances of the subject property, strict application of the County Code 777 would produce undue hardship not generally shared by other properties in the area, and 778 authorizing this variance will neither cause a substantial detriment to adjacent property 779 nor materially impair the purpose of the zoning regulations. 780 781 Mr. Kirkland - Next case sir. 782 783 A -102-2001 CHARLES A. GAVIN requests a variance from Sections 24- 784 95(i)(2), 24-94 and 24-95(i)(2)(f) of Chapter 24 of the County Code 785 to build an addition at 6505 River Road (Westham) (Tax Parcel 786 126-6-E-2), zoned R-1, One-family Residence District (Tuckahoe). 787 The accessory structure location requirement, minimum side yard 788 setback, and pool setback are not met. The applicant has 9 feet 789 minimum side yard setback, 0 feet pool setback and a pool in the 790 side yard, where the Code requires 20 feet minimum side yard 791 setback and 10 feet pool setback and allows accessory structures 792 in the rear yard. The applicant requests variances of 11 feet 793 minimum side yard setback, 10 feet pool setback and allowing an 794 accessory structure in the side yard. 795 796 Mr. Kirkland - Anyone else wish to speak on this case? If you would, raise 797 your right hand and be sworn in. 798 799 Mr. Blankinship - Do you swear that the testimony you are about to give is the 800 truth, the whole truth, and nothing but the truth, so help you God? 801 802 Mr. Gavin - Yes I do. 803 804 Mr. Kirkland - State your name for the record. Have all your notices been 805 turned in? We have them in the file. Okay, proceed with your case 806 807 Mr. Gavin - Charles Gavin. Yes sir they have. Good morning 808 gentlemen. Our lot is somewhat unique in so far as it has a valley. It sort of runs from 809 the northeast corner to the southwest corner; it starts very high and then goes low, and 810 then goes back up. That’s why the house right now is built towards the northeast 811 corner. My wife and I wanted to put an addition on the east line, because it looks like 812 we’re going to have the possibility of an in-law situation. We wanted to create a new 813 master for us and make the in-law suite, leave it on the other end of the house. So we

July 26, 2001 18 814 wanted to put an addition where you see the screened-in porch on your screen. We 815 wanted to enclose that, make it a breakfast room, and then make the addition off of the 816 end. There’s actually a drainage easement that the County has that runs through the 817 back line. You’ll see that in the back. But also the way the land lies from the front 818 corner, right along this big oak tree, all the water flows along that area right along the 819 rear of the enclosed pool house. So if you built something on this end of the house, 820 you’d have problems with water and that drainage easement. What we would like to do 821 is put something that comes out more of an L-shape on the other end of the house and 822 remove the existing pool structure to make that an outdoor pool and then just have an 823 addition on this side of the line. The person most affected would be the neighbor on the 824 east side, who would be the Potts, and I’ve spoken to them, in addition to the Bates 825 behind us, and Dr. Riley and his wife on the other side. Dr. Riley has since passed 826 since I filed the application, but the Potts don’t have any objection. In fact, because the 827 lot is so high in the northeast corner, when they put in their lot, they have a driveway in 828 between our house and you see where the white Bronco is parked. They actually 829 elevated their lot because the lot slopes off so severely behind their house, so our 830 property would actually be sort of down the side, so it wouldn’t be as visible to them as 831 you might imagine. That’s why we’re asking for the variance, to get a little closer to their 832 lot line. Our lot line would actually be the existing structure would basically be right at 833 the rear right corner of the pool house as you see right now. The drainage easement, 834 I’m not sure if you can tell or not, but there’s actually some, back on the previous 835 picture, when that water, especially when we have a hard rain, right by that oak tree, all 836 the water funnels right down there and goes right around that house. A structure 837 anywhere else, other than where we propose, unless we came right off the back of the 838 house and made it more of a T-type addition, probably wouldn’t work. 839 840 Mr. Kirkland - Any questions by Board members? 841 842 Is Johnny Bates your neighbor? 843 844 Mr. Gavin - Yes sir he is. 845 846 You probably need a little screen between you and him. 847 848 Mr. Gavin - Well actually he’s put a big screen back there. He’s a good 849 neighbor. 850 851 Mr. Kirkland - Does anyone else wish to speak on this case? If not, that 852 concludes the case sir. 853 854 After an advertised public hearing and on a motion by Mr. Balfour, seconded by Mr. 855 McKinney, the Board granted application A-102-2001 for a variance to build an addition 856 at 6505 River Road (Westham) (Tax Parcel 126-6-E-2). The Board granted the 857 variance subject to the following condition: 858

July 26, 2001 19 859 1. Only the improvements shown on the plan filed with the application may be 860 constructed pursuant to this approval. No substantial changes or additions to the layout 861 may be made without the approval of the Board of Zoning Appeals. Any additional 862 improvements shall comply with the applicable regulations of the County Code. 863 864 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 865 Negative: 0 866 Absent: 0 867 868 The Board granted this request, as it found from the evidence presented that, due to the 869 unique circumstances of the subject property, strict application of the County Code 870 would produce undue hardship not generally shared by other properties in the area, and 871 authorizing this variance will neither cause a substantial detriment to adjacent property 872 nor materially impair the purpose of the zoning regulations. 873 874 Mr. Kirkland - Next one sir. 875 876 A -103-2001 BECKY AND BRAXTON GLASGOW request a variance from 877 Sections 24-95(i)(2) and 24-95(q)(5) of Chapter 24 of the County 878 Code to build a carport and screened porch at 9913 Carrington 879 Place (Riverlake Colony) (Tax Parcel 98-7-E-28), zoned R-1, One- 880 family Residence District (Tuckahoe). The accessory structure 881 location and minimum side yard setback are not met. The 882 applicants have 9.5 feet minimum side yard setback and a 883 swimming pool in the side yard, where the Code requires 12 feet 884 minimum side yard setback, and allows accessory structures in the 885 rear yard. The applicants request variances of 2.5 feet minimum 886 side yard setback and an accessory structure in the side yard. 887 888 Mr. Kirkland - Does anyone else wish to speak on this case? Okay sir, if 889 you would stand at the same time, raise your right hand and be sworn in. 890 891 Mr. Blankinship - Do you swear that the testimony you are about to give is the 892 truth, the whole truth, and nothing but the truth, so help you God? 893 894 Ms. Glasgow - I do. 895 896 Mr. Kirkland - Okay, would you state your name for the record. Could I ask 897 you one more question? Have you turned in all your notices? Now you can proceed. 898 899 Ms. Glasgow - My name is Becky Glasgow. Yes we have. Until night 900 before last we didn’t know that there was any objection to our plans. My husband is out 901 of town also, because he had planned to be out of town when we didn’t think there was 902 any objection, but there’s been some miscommunication about what we are allowed by 903 our neighborhood to do, and not to do, in our building. We based our building plans on 904 what we believed to be allowed, and now we’re finding out that there’s some difference

July 26, 2001 20 905 of opinion on that, and we’re several thousand dollars into the planning of the project 906 and preparation for the building. After receiving the information, night before last, and 907 talking to as many people as we could yesterday, and talking to my husband and our 908 contractor, we see now that it’s going to cost a lot more to do it the way that we’re 909 hearing is the only way we can do it. So I’m not sure what to do except to ask that 910 maybe we put off this request for a month, so that we can reach a compromise, 911 hopefully, with our neighborhood review committee. 912 913 Do you want to defer it? 914 915 Mr. Kirkland - Does the opposition have any objection to that sir? 916 917 Opposition - No sir. 918 919 So moved. 920 921 Mr. Kirkland - All those in favor say aye. So next month. 922 923 Ms. Glasgow - So I need to redo everything I’ve done? 924 925 Mr. Blankinship - We‘ll be in touch with you about that. 926 927 Upon a motion by Mr. Balfour, seconded by Mr. McKinney, the Board of Zoning Appeals 928 deferred application A-103-2001 for a variance to build a carport and screened porch at 929 9913 Carrington Place (Riverlake Colony) (Tax Parcel 98-7-E-28). The case was 930 deferred for 30 days, to allow time for further discussions with your neighborhood review 931 committee, from the July 26, 2001, until the August 23, 2001, meeting, 932 933 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 934 Negative: 0 935 Absent: 0 936 937 Mr. Kirkland - Next case. 938 939 A -104-2001 HEZEKIAH WILKERSON requests a variance from Section 24-94 940 of Chapter 24 of the County Code to build a sunroom at 4740 Glen 941 Finnian Drive (Yahley Mill East) (Tax Parcel 229-5-A-4), zoned A-1, 942 Agricultural District (Varina). The rear yard setback is not met. The 943 applicant has 39 feet rear yard setback, where the Code requires 944 50 feet rear yard setback. The applicant requests a variance of 11 945 feet rear yard setback. 946 947 Mr. Kirkland - Is the applicant here for this case? We’ll pass this one by till 948 later on. 949 950 Mr. Kirkland - Next case.

July 26, 2001 21 951 952 A -105-2001 DAVID M. STEVENS requests a variance from Section 24- 953 104(k)(4)b of Chapter 24 of the County Code to install a sign at 954 8052 W Broad Street (Tax Parcel 70-A-18), zoned B-2, Business 955 District (Brookland). The sign height requirement is not met. The 956 applicant wishes to install a sign above the roof line, where the 957 Code allows signs below the roof line. 958 959 Mr. Kirkland - Anyone else wish to speak on this case? Okay sir, if you 960 would, raise your right hand and be sworn in. 961 962 Mr. Blankinship - Do you swear that the testimony you are about to give is the 963 truth, the whole truth, and nothing but the truth, so help you God? 964 965 Mr. Kirkland - State your name for the record sir. Have all your notices 966 been turned in according to the Code? Okay, we have them in the file. All right, state 967 your case. 968 969 Mr. Stevens - I do. My name is David Stevens. Yes I have; you should 970 have them on record. Sir I’m here representing Kabuto’s Restaurant. What they’re 971 wanting to do is actually replace a sign that was destroyed in a fire. The sign that 972 they’re wanting to put up is as close to an exact replica of what was there before, as we 973 could determine through photographs and measurements taken of the old sign. I have 974 some other documentation going on here, if I could pass these out to possibly review. 975 976 Mr. Kirkland - We got this already. 977 978 Mr. Stevens - Just in case there’s any questions. In that, of course, you 979 have a drawing of the, that packet I’m handing out now, that was, the first picture that’s 980 on there is a picture of the old sign after the devastation by the fire. The next, what 981 you’ve already got also included in your package is a drawing of the new sign. As you 982 can see there, the exactness of the duplication of that sign, and it is in regards to size 983 and length, proportion. You also have, that was given, I believe, a photo of the building 984 with the sign applied, as it would look. That drawing is to scale and an accurate 985 depiction of the sign and building as it would go for. 986 987 Mr. Kirkland - Is that this one right here? 988 989 Mr. Stevens - Is that the package you just got? 990 991 Mr. Kirkland - Yes sir. 992 993 Mr. Stevens - No sir, it’s the one you were given. Yes sir, it’s a color photo 994 there. That’s as it would actually look. I want to note that the layout of that sign on the 995 building is located again in the same exact footprint as it was previously before the fire. 996 Again, nothing has changed. We’re wanting to put it up exactly as it was before, the

July 26, 2001 22 997 only thing that’s actually changing is the building, and it’s just the architectural design of 998 the building, because it actually fits the footprint as previous also. What I had just given 999 you is regarding to the reasoning behind the request for the survey, and it’s a 1000 photographic survey going down West Broad Street, both in the east and west 1001 directions. As to the lack of visibility of this, as you can tell, you’ve got a westward set 1002 of pictures and an eastward set of pictures, totaling 17. Out of those, you can only see 1003 that sign in about 5 or 6 of those pictures. In the east direction set of photos, you will 1004 see that at no time until you’re up at the traffic light and looking back over your left-hand 1005 shoulder. Is any portion of that building visible to any Broad Street traffic except where I 1006 have indicated that the sign is to be placed? There’s a wall and the raised area of the 1007 ground there, and the fence behind the Crown Station, and the businesses in front 1008 completely hide that building except for the cupolas, which extend above the roof line 1009 there. Again, this is a sign that existed before, due to the fire, we’re asking that it be 1010 replaced. Staff had recommended, or had said something about the freestanding sign, 1011 which I’ve also included pictures in there. There’s no place for them to use that 1012 freestanding sign to help advertise this. The only place that this business can advertise 1013 is by signage on the building, but as shown by the pictorials that I’ve given you there, 1014 the only place that is effective, especially from the eastward views coming from the west 1015 on West Broad Street, that location that we’ve picked, and where the sign was 1016 previously, is the only place the sign would be visible from. Again, going in the 1017 westward direction, there’s only, and all these pictures were taken from the traffic-bound 1018 lanes, there’s a site plan that’s showing those pictures were taken in about a 700-800- 1019 foot spread, from one drive to somewhat past the second drive, going to and from down 1020 West Broad Street. So you’ve got an actual significant photo of the problem they are 1021 incurring. As I stated in my letter previously, as far as the request, zoning often grants, 1022 the ordinance states that attached signs shall not extend above the roof line. Zoning 1023 administratively gives relief to that sentence for an extension of 40 inches. That’s 1024 common in regards to applying for sign permits. So they take it to that fact, again, 1025 commonly. So we’re asking that the sign be allowed to be put back again in the same 1026 footprint, as it was prior to the fire, and continue business as usual. 1027 1028 Mr. Kirkland - Let me ask you a question. From the top of the roof to the 1029 top of the sign is how far? I’m talking about on the end of the gable here, this line right 1030 here, that line. 1031 1032 Mr. Stevens - Yes sir, that’s going to be, I’m sorry, point out again how you 1033 want me to ……………. 1034 1035 Right here. 1036 1037 Thirteen feet. 1038 1039 Mr. Stevens - Well it’s, from the bottom of that, it’s 13 feet, but the sign 1040 itself, from where you’re pointing, up to the top of the sign is going to be approximately 8 1041 feet, 7 or 8 feet. 1042

July 26, 2001 23 1043 Mr. McKinney - What is in the construction above the roof? Is that 1044 equipment or what? 1045 1046 Mr. Stevens - No it’s not equipment. It’s my understanding, Mr. Browning, 1047 that is a closed ……….. 1048 1049 Mr. Kirkland - Sir, you didn’t get sworn in, so if you’re going to say anything, 1050 you need to raise your right hand and come down here to this microphone. Mr. 1051 Blankinship, I think you need to swear him in. Will you raise your right hand? 1052 1053 Mr. Blankinship - Do you swear that the testimony you are about to give is the 1054 truth, the whole truth, and nothing but the truth, so help you God? 1055 1056 Mr. Browning - Yes I will. 1057 1058 Mr. Kirkland - State your name. 1059 1060 Mr. Browning - William Browning. I’m designing associate architecture. 1061 1062 Mr. Kirkland - And now, the question you asked him? 1063 1064 Mr. Stevens - Mr. Browning, that particular part, the cupola there, that is 1065 just an architectural feature; it houses no equipment or anything, is that correct? 1066 1067 Mr. McKinney - How about the other one? 1068 1069 Mr. Browning - The other one is enclosing an atrium that’s inside of the 1070 entrance. The ceiling inside of the larger one to your left in that photo, as I’m looking at 1071 it there …………. 1072 1073 Mr. Kirkland - Can you move closer to the mike – we are taping this. 1074 1075 Mr. Browning - I am sorry. The feature to the left, the one that would be 1076 directly over the entrance, is an atrium inside of the restaurant. It has approximately an 1077 18-foot-ceiling above floor, so the ceiling of that is about where the gutter line would be, 1078 the bottom of the slope. 1079 1080 Mr. McKinney - You say it’s an atrium that goes from the floor, 18 feet all the 1081 way up? 1082 1083 Mr. Browning - That is correct. It’s just a higher ceiling, and what we’re 1084 doing in that, what I call an atrium area, is an art feature of a sky set; it’s specially lit 1085 inside the building. 1086 1087 Mr. McKinney - Mr. Browning, isn’t that considered part of the roof of the 1088 building?

July 26, 2001 24 1089 1090 Mr. Browning - Yes sir, to me it is. Both of those are architectural features. 1091 The one that we’re talking about now has the atrium ceiling, does have a higher ceiling 1092 than the one to the right, the smaller one, which is behind that sign. So there’s 2 1093 different heights inside the building. Our request has been to locate the sign where the 1094 sign was before, which will put it on the back corner of the building and closest to the 1095 roof, which is simply a lower, mansard-shaped roof. That’s where, when it’s placed to 1096 the rear, which offers the best exposure and keeps it off of the higher roofs, that’s where 1097 it exceeds the 40 inches. 1098 1099 Mr. McKinney - In your opinion, what is the highest part of this roof. Wouldn’t 1100 it be that ridge of that atrium? 1101 1102 Mr. Browning - That is correct sir; it would be 18 feet inside of that atrium 1103 area. 1104 1105 Mr. McKinney - Well that’s part of the roof of this building, correct. 1106 1107 Mr. Browning - That is correct sir. 1108 1109 Mr. McKinney - So Mr. Secretary, why is this sign; it’s below the highest part 1110 of the roof. 1111 1112 Mr. Blankinship - Mr. McKinney, I don’t know who made the application for 1113 building permit; that’s not the information we were given when we reviewed the permit, 1114 for the sign permit. We were told that there was nothing, that neither of these 2 features 1115 had any area that was open to below. We were told that at building permit application, 1116 that they stood on top of the roof. 1117 1118 Mr. McKinney - Well now it is; it’s part of the building. Well are you saying 1119 now as Secretary of this Board that they don’t need a variance for this sign? 1120 1121 Mr. Blankinship - That’s what it’s sounding like, I agree. It seems to have been 1122 a misunderstanding. 1123 1124 Mr. McKinney - I don’t think you should even be here. But as it is, we’ll go 1125 ahead and proceed, just so you’re safe. 1126 1127 Mr. Stevens - I can assure the members of the Board that this situation was 1128 addressed and spoken in the building department, and certain members of the planning 1129 department, this information was brought to them, and it came back to us that we had to 1130 go through a variance, because the sign, as the ruling has come back to me on several 1131 occasions, attempting to permit signs, if the sign is not going on a portion of the building 1132 that is not considered the roof line, and where that sign is going, the roof line is below 1133 the sign ……….. 1134

July 26, 2001 25 1135 Mr. McKinney - Well this is part of the roof line. Let me ask Mr. Browning 1136 one other question. This atrium that goes up – I see where you’ve got here “finished 1137 wood trim.” What’s to be in the top of this atrium? Is there a skylight, hanging plants? 1138 1139 Are you the architect? 1140 1141 Mr. Browning - Yes sir, we’re the architects for the project, and inside the 1142 atrium area, as I mentioned before, is an arched ceiling that will be, we have an artist 1143 who’s doing a night scene that’s going to be lit with revolving lights that’s creates simply 1144 a scene on the ceiling. 1145 1146 Mr. McKinney - You’ve got a clear span from the floor, all the way up to the 1147 bottom of this roof? 1148 1149 Mr. Browning - Clear span, heated, cooled, there are trusses on top of that; 1150 it’s part of the roof. 1151 1152 Thank you. 1153 1154 Mr. Kirkland - Any other questions? Anyone else wish to speak? That 1155 concludes the case. 1156 1157 And the 9:00 o’clock agenda. 1158 1159 Mr. Kirkland - And that concludes the 9:00 o’clock agenda, and since it’s 1160 not 10:00 o’clock yet, we can’t act on the 10:00 o’clock until it’s 10:00 o’clock. We’ll 1161 take a break. 1162 1163 After an advertised public hearing and on a motion by Mr. McKinney, seconded by Mr. 1164 Wright, the Board granted application A-105-2001 for a variance to to install a sign at 1165 8052 W Broad Street (Tax Parcel 70-A-18). The Board granted the variance subject to 1166 the following condition: 1167 1168 1. This approval is only for the location of the subject sign above the roof line. 1169 1170 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 1171 Negative: 0 1172 Absent: 0 1173 1174 The Board granted this request, as it found from the evidence presented that, due to the 1175 unique circumstances of the subject property, strict application of the County Code 1176 would produce undue hardship not generally shared by other properties in the area, and 1177 authorizing this variance will neither cause a substantial detriment to adjacent property 1178 nor materially impair the purpose of the zoning regulations. 1179 1180 Mr. Kirkland - We’re starting the 10:00 o’clock agenda. If you would, read

July 26, 2001 26 1181 the rules again, for those who missed them in the first round. 1182 1183 Mr. Blankinship - Mr. Chairman, Members of the Board, ladies and gentlemen. 1184 The rules for this meeting are as follows. The Secretary, myself, will call each case. 1185 Then the applicant will come to the podium. At that time I’ll ask those who intend to 1186 speak, in favor or opposition, to stand, and be sworn in. The applicants will then 1187 present their testimony. When the applicant is finished, anyone else who wants to 1188 speak will be given the opportunity. After everyone has spoken, the applicant, and only 1189 the applicant, will be given the opportunity for rebuttal. After hearing the case, and 1190 asking questions, the Board will take the matter under advisement. They will render all 1191 of their decisions at the end of the meeting. If you wish to know what their decision is, 1192 you may stay until the end of the meeting, or you may call the Planning Office at the end 1193 of the day. This meeting is being tape recorded, so we will ask everyone who speaks, 1194 to speak directly into the microphone on the podium, and to state your name for the 1195 record. Out in the foyer, there are two binders, which contain the staff report for each 1196 case, including the conditions suggested by the staff. 1197 1198 Mr. Kirkland - Do we have any deferrals or withdrawals on the 10:00 1199 o’clock agenda? 1200 1201 Mr. Blankinship - No sir. 1202 1203 How about the case we passed over? 1204 1205 Mr. Kirkland - Is anyone here from A-104-2001 Hezekiah Wilkerson. 1206 Anyone representing them? We’ll wait till the end. Okay, if you would, call the next 1207 case. 1208 1209 Mr. Blankinship - Mr. Chairman, the next 2 cases are companions. Would you 1210 like me to call them together? 1211 1212 Mr. Kirkland - Yes please. 1213 1214 A -106-2001 TOM AND PATTI COLEMAN request a variance from Section 24- 1215 95(b)(5) of Chapter 24 of the County Code to build a dwelling at 1216 1305 Libbie Avenue (Monument Avenue Crest) (Tax Parcel 115-3- 1217 B-2 (part)), zoned R-3, One-family Residence District (Brookland). 1218 The lot width requirement is not met. The applicants have 60 feet 1219 lot width, where the Code requires 65 feet lot width. The applicants 1220 request a variance of 5 feet lot width. 1221 1222 A -107-2001 TOM AND PATTI COLEMAN request a variance from Sections 24- 1223 95(1)(2)d. and 24-95(c)(1) of Chapter 24 of the County Code to 1224 allow existing dwelling to remain at 1307 Libbie Avenue (Monument 1225 Avenue Crest) (Tax Parcel 115-3-B-1 (part)), zoned R-3, One- 1226 family Residence District (Brookland). The accessory structure

July 26, 2001 27 1227 setback and minimum side yard setback are not met. The 1228 applicants have 6.25 feet minimum side yard setback and 0 feet 1229 accessory structure setback, where the Code requires 7.8 feet 1230 minimum side yard setback and 3 feet accessory structure setback. 1231 The applicants request a variance of 1.55 feet minimum side yard 1232 setback and 3 feet accessory structure setback. 1233 1234 Mr. Kirkland - Anyone else wish to speak on this case? Okay sir, if you 1235 would raise your right hand and be sworn in. 1236 1237 Mr. Blankinship - Do you swear that the testimony you are about to give is the 1238 truth, the whole truth, and nothing but the truth, so help you God? 1239 1240 Mr. Coleman - Yes I do. 1241 1242 Mr. Kirkland - Would you state your name for the record. Have all your 1243 notices been turned in according to the Code? 1244 1245 Mr. Coleman - Name’s Tom Coleman. Yes sir. 1246 1247 Looks like one notice went for both cases. 1248 1249 Mr. Kirkland - Yes. If you would, state your case. 1250 1251 Mr. Coleman - Thank you Mr. Chairman. My wife and I own an existing 1252 house and the lot adjacent to it along Libbie Avenue. The lot on the corner is a 78-foot 1253 lot; the vacant lot is a 60-foot lot. The majority of the houses along Wythe Avenue and 1254 Monument Avenue, in that area are 60-foot lots. Actually most of the lots that are larger 1255 than 60 feet happen to be either on a corner or side up to an alley. I think that, certainly 1256 as far as lot width and area, this lot would be consistent with the majority of the houses 1257 in the neighborhood. There’s a lot of existing landscaping, trees and shrubs, on the 1258 lots, and that would help minimize the impact of construction. The existing garage, the 1259 reason we’d like that to remain, it is architecturally similar to the house, it’s made out of 1260 the same brick, it’s got a similar hip-style roof, it does have a shingle roof rather than a 1261 slate roof, but basically, architecturally, it is similar to the existing house. We have 1262 talked to the neighbors about this personally. They are supportive. They’re aware that 1263 the house had 2 previous owners, and while structurally it is in good condition, it needed 1264 a lot of TLC, and we’ve put a lot of work into the lot and into the house, and I think 1265 they’re comfortable that we would share their concern in that we would want a house 1266 built on that lot to be as consistent as possible with the existing construction in the 1267 neighborhood. 1268 1269 Mr. Coleman, have you got a contract on this lot, subject to 1270 variance? 1271 1272 Mr. Coleman - Not currently. We have talked to some people, but we

July 26, 2001 28 1273 haven’t signed any contracts yet. 1274 1275 How was this problem discovered? 1276 1277 Mr. Coleman - Actually, there was an existing variance on the lot when we 1278 purchased the house; we purchased them together, and at that time it was not our 1279 intention, although we knew at some point in the future that we might want to request 1280 that variance again. 1281 1282 Mr. Kirkland - Any other questions by Board members? Anyone else wish 1283 to speak? That concludes the cases. Thank you sir. 1284 1285 After an advertised public hearing and on a motion by Mr. McKinney, seconded by Mr. 1286 Nunnally, the Board granted application A-106-2001 for a variance to build a dwelling 1287 at 1305 Libbie Avenue (Monument Avenue Crest) (Tax Parcel 115-3-B-2 (part)). The 1288 Board granted the variance subject to the following condition: 1289 1290 1. This variance applies only to the lot width requirement. All other applicable 1291 regulations of the County Code shall remain in force. 1292 1293 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 1294 Negative: 0 1295 Absent: 0 1296 1297 The Board granted this request, as it found from the evidence presented that, due to the 1298 unique circumstances of the subject property, strict application of the County Code 1299 would produce undue hardship not generally shared by other properties in the area, and 1300 authorizing this variance will neither cause a substantial detriment to adjacent property 1301 nor materially impair the purpose of the zoning regulations. 1302 1303 After an advertised public hearing and on a motion by Mr. McKinney, seconded by Mr. 1304 Nunnally, the Board granted application A-107-2001 for a variance to allow existing 1305 dwelling to remain at 1307 Libbie Avenue (Monument Avenue Crest) (Tax Parcel 115-3- 1306 B-1 (part)). The Board granted the variance subject to the following condition: 1307 1308 1. This variance applies only to the minimum side yard and accessory structure 1309 setback requirements from the property line. All other applicable regulations of the 1310 County Code shall remain in force. 1311 1312 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 1313 Negative: 0 1314 Absent: 0 1315 1316 The Board granted this request, as it found from the evidence presented that, due to the 1317 unique circumstances of the subject property, strict application of the County Code 1318 would produce undue hardship not generally shared by other properties in the area, and

July 26, 2001 29 1319 authorizing this variance will neither cause a substantial detriment to adjacent property 1320 nor materially impair the purpose of the zoning regulations. 1321 1322 Mr. Kirkland - Next case. 1323 1324 Mr. Blankinship - Now we have a real bonus, Mr. Chairman. The next 3 cases 1325 are companions. 1326 1327 Mr. Kirkland - Do them all. 1328 1329 A -108-2001 HIGGINS FAMILY requests a variance from Section 24-94 of 1330 Chapter 24 of the County Code to allow the existing dwelling to 1331 remain at 912 South Gaskins Road (Tax Parcel 123-A-2 (part)), 1332 zoned R-0, One-family Residence District (Tuckahoe). The lot 1333 width requirement and rear yard setback are not met. The applicant 1334 has 50 feet lot width and 20 feet rear yard setback, where the Code 1335 requires 200 feet lot width and 50 feet rear yard setback. The 1336 applicant requests a variance of 150 feet lot width and 30 feet rear 1337 yard setback.

1338 A -109-2001 HIGGINS FAMILY requests a variance from Section 24-94 of 1339 Chapter 24 of the County Code to build a one-family dwelling at 916 1340 South Gaskins Road (Tax Parcels 123-A-2 (part) and -6A), zoned 1341 R-0, One-family Residence District (Tuckahoe). The lot width 1342 requirement is not met. The applicant has 50 feet lot width, where 1343 the Code requires 200 feet lot width. The applicant requests a 1344 variance of 150 feet lot width.

1345 A -110-2001 HIGGINS FAMILY requests a variance from Section 24-9 of 1346 Chapter 24 of the County Code to build a one-family dwelling at 301 1347 Daniels Road (Tax Parcel 123-A-7), zoned R-0, One-family 1348 Residence District (Tuckahoe). The public street frontage 1349 requirement is not met. The applicant has 0 feet public street 1350 frontage, where the Code requires 50 feet public street frontage. 1351 The applicant requests a variance of 50 feet public street frontage. 1352 1353 Mr. Kirkland - Is the applicant here? Anyone else wish to speak? 1354 Everybody stand up and raise their hands. 1355 1356 Mr. Blankinship - Do you swear that the testimony you are about to give is the 1357 truth, the whole truth, and nothing but the truth, so help you God? 1358 1359 Mr. Wright - Mr. Chairman, I’ll disqualify myself from these cases. 1360 1361 Mr. Kirkland - Would you state your name for the record sir? 1362 1363 Mr. Condlin - Yes sir, my name is Andy Condlin, from Williams Mullen,

July 26, 2001 30 1364 representing the Higgins Family. 1365 1366 Mr. Kirkland - Have all adjacent landowners been contacted in all these 1367 cases? 1368 1369 Mr. Condlin - Yes sir, in all 3 cases we contacted the adjacent landowners 1370 as required, and submitted those receipts in to the staff. 1371 1372 Mr. Kirkland - All right, state your case. 1373 1374 Mr. Condlin - Mr. Chairman, members of the Board, my name is Andy 1375 Condlin, from Williams Mullen. I have with me Ralph and Janie Higgins, who are 1376 brother and sister. Together with their brother Ken, they are members, or owners of the 1377 Higgins Family Limited Partnership, who are owners of the property. I’m going to have 1378 to warn you, I’m pretty bad with this pen, and it always comes up to haunt me, but I 1379 wanted to go through the parcels that we’re talking about today. With just this parcel 7, 1380 which accesses the property through Daniels Road, which is a private road through, 1381 over and across, and owned by the Country Club of Virginia, and there is easement 1382 rights on parcel 7, as we have provided in the package, insurable easement rights by a 1383 title company. Also we will be talking about parcel 6A, that I’ll be referring to. You’ll see 1384 on this plan, there is another plan where parcel 2 actually consists of this parcel and all 1385 the way up along here. So that’s all parcel 2. As it stands now, parcel 6A has 1386 absolutely no access to any public road. I described parcel 2, which consists of parcel 1387 2A, parcel 2B, parcel 2C, and parcel 2D, which currently is an entire parcel. No one on 1388 the tax maps in the County records has parcel 2. Finally, there is what I call the Ralph 1389 Higgins parcel, which has a home on it, that sits approximately at this location right 1390 here. And that’s where Mr. Ralph Higgins currently lives, and it’s titled in his name 1391 alone. That is not the subject of any of the variance requests, but I did want to mention 1392 that, because it will be mentioned a number of times. 1393 1394 Mr. Balfour- I’m not clear. Are you saying you’ve got frontage and access 1395 on Daniels Road for 2 lots, but you kind of confused me talking about the little lot. 1396 1397 Mr. Condlin - Well, if I may – Ben, do you have the parcel 2? Actually, 1398 Ben, I was thinking of this that shows all of them, which is parcel 2, as a whole, not 1399 broken up. 1400 1401 Mr. Balfour- I guess my question is, it looks like you’ve got access 1402 through Gaskins Road, is that right? 1403 1404 Mr. Condlin - For parcel 2, yes sir, there is access to Gaskins Road. We 1405 are not asking for a lack of access for parcel 2 because of that. You can see, currently, 1406 here is all of parcel 2 as it currently stands, which is right here. That house that’s 1407 located on it, which we affectionately call the barn, where we make Janie live, in what’s 1408 called the barn, that’s been renovated to a home and has been used as a home since 1409 the 1940’s. All of this property that we’re talking about, including the Ralph Higgins

July 26, 2001 31 1410 property, was owned at one time by their parents, Mr. and Mrs. Kenneth and Mary 1411 Higgins. After their passing, it’s gone through the estate, and to the children of their 1412 estate, and as part of the settlement of that estate, they have waited to distribute this 1413 property until they settled the remainder of the estate. That’s where we are now, where 1414 they want to disburse it to not only the children, but to provide for the potential of the 1415 grandchildren to live on the properties. I wanted to let you know that we’re coming to 1416 you today with everything; we’re showing you everything, putting it all on the table, so 1417 that we don’t have to come back at you piecemeal as we do every little time. We 1418 wanted to be able to show you the big picture and a long-term look at the property. 1419 While it may seem complicated initially, this is really quite frankly, some simple 1420 requests. It just ends up having to be 4 variance requests over and across what now 1421 exists as 3 parcels. 1422 1423 Let me talk first about parcel 7, and then I’ll talk about the other ones, because parcel 7 1424 is on its own. Parcel 7 sits right here, and as I told you, it has no other access but for 1425 Daniels Road. This is a variance request for that lack of public access, public road 1426 frontage, and it’s no different than farther west of this, farther down Daniels Road, the 1427 Board of Zoning Appeals, in 1989, granted a variance for a parcel 9. There were 2 1428 parcels, sitting parcel 9 and parcel 10, and the BZA said “we’ll grant you one variance 1429 for those 2 parcels,” which is exactly what happened, parcel 9 was sold. Parcel 10 is 1430 now made part of what’s called Middle Quarter Subdivision. It’s a proposed 15-lot 1431 subdivision that surrounds this property. But for the lack of public road frontage, it 1432 meets all other Code requirements needed to build a single family dwelling. They have 1433 no other access rights, and their access rights are insurable by the easement over 1434 across Daniels Road. The dwelling obviously would have little impact on the 1435 surrounding property, particularly when you take into account some of the other 1436 property in the area, the size of the lot, the Middle Quarter Subdivision, and the fact that 1437 there would have to be no improvements made today on that road in order to use this. 1438 The variance would allow parcel 7 to be used exactly as the surrounding properties are 1439 currently being used. I would mention one thing, and it’s always odd for me to ask for 1440 you to add a condition, but in talking with the Country Club of Virginia, their concern was 1441 that there may be more than one dwelling located on parcel 7. At no time is there an 1442 intent, and quite frankly, in talking with the staff, I don’t think there is an ability, legally, to 1443 put more than one dwelling upon the grant of a variance for parcel 7. However, for the 1444 neighbors’ sake and to make sure that everyone’s aware of that, we would ask that if 1445 you are so inclined to vote for a variance for parcel 7, that you would impose a condition 1446 to said “only one dwelling may be located on parcel 7,” and we could not locate or 1447 subdivide that parcel for that one variance that you grant. 1448 1449 Mr. Balfour- Is it case 108, 109, 110? 1450 1451 Mr. Condlin - 110. 1452 1453 Mr. Balfour- So we want to amend that to “no more than one residence on 1454 lot 7.” 1455

July 26, 2001 32 1456 Mr. Condlin - Yes sir. That takes care of parcel 7. 1457 1458 Let me discuss then, parcels 2 and 6A. Parcel 6A, if you remember, is a larger piece 1459 right here, which has no access from any property. As you can see, it’s completely 1460 blocked off to Gaskins Road via parcel 2. Allow me to put up the other lot. This is what 1461 we’re proposing, and it’s kind of an odd configuration. Obviously parcel 2 is an oddly 1462 configured lot. This is just a strange lot, which currently accesses Daniels Road and 1463 Gaskins Road. It covers all of these parcels. This parcel that you see here, that we’re 1464 labeled parcel 2D, we’re proposing that it be made, and there’s no variance request 1465 associated with this parcel 2D, and we can by subdivision law, simply merge it with the 1466 Ralph Higgins parcel, which is what we want to do, for one reason in particular, which is 1467 to say, there are no other lots now fronting on Daniels Road that would need to come 1468 forward to the BZA. As part of our parcel 2 request, we could have said we’ll use that 1469 as part of our parcel 2 and ask for a variance for lack of a public road frontage, but 1470 we’re proposing, and the family and the children have agreed to make that part of the 1471 Ralph Higgins property. I suspect there would be no more requests for Daniels Road 1472 lack of road frontage to access Daniels Road on this property. That benefits everybody 1473 at this point. 1474 1475 Let me next mention parcel 2A. It’s a 50-foot wide road that we’ve got running along 1476 there. That is solely and completely to access parcel 6A. The children are trying to 1477 correct this lack of access by that parcel 6A. Without parcel 2A, there is no public road 1478 frontage to parcel 6A. To build a home, we need to do one of 2 things. We either need 1479 to get a variance for lack of public road frontage and get a private easement over and 1480 across the road, or we need to provide this parcel 2A and ask for a lot width variance 1481 from what’s required at 200 feet to go down to the 50 feet. The reason we want to be 1482 able to put in this road, this driveway, and have this parcel 2A on there so that they can 1483 control the easement. I think you will hear today that there are some folks who are 1484 opposing making this an access road. I would propose to you that in fact, that they’re 1485 probably going to present to you that they’re concerned about there being a public road 1486 and a subdivision in here. By the failure to get this variance, I would propose to you 1487 that, in fact, when we don’t get the variance, we’re going to have to put a public road in 1488 there in order to access parcel 6A. If we can’t get a variance for accessing it otherwise, 1489 either as we’ve requested, by the lot width requirement, by putting in the 50 feet, the 1490 only way we can get back there, is to make parcel 2A a public road, and to pay for the 1491 cost of the public road. Quite frankly, ultimately we will have to subdivide the parcel 6A 1492 to help pay for the cost of the road. That’s the reality of the situation. By getting the 1493 variance, we can put one home on here. Mr. Ralph Higgins has 2 sons he’s been 1494 talking to. He wants to be able to locate his sons at this parcel, to let them choose 1495 whether they want to locate or keep it open space. At any time we obviously can come 1496 forward and make this a public road, and we don’t need a variance to make that a public 1497 road, and we could put that in there. We’re trying to avoid that by this request, by being 1498 able to put a driveway along parcel 2A. We chose 50 feet simply because we want to 1499 be able to control that in the future if that item ever comes up. In my experience it’s 1500 probably better, so that there’s not an issue later on, that we don’t have to come back to 1501 the BZA or go back to the Planning Commission for a waiver of public road frontage.

July 26, 2001 33 1502 Just give them fee simple interest in the 50 feet under parcel 2A right now. 1503 1504 Finally, we’ve covered the variance request for parcel 7 and parcel 2A and 6A. Next I’m 1505 going to cover the last two variances. At this location, and what I’ve got showing here is 1506 parcel 2A, you see again what I refer to as the barn, you can see 2 setback references, 1507 one for 50 feet here, and one for 20 feet here. When we came forward with the other 3 1508 requests, the staff requested that we actually present this and make this part of our 1509 variance request. As you can see, the barn’s southeast corner, and it can’t be any more 1510 true, this corner is actually the access to Gaskins Road. Either side has to cross other 1511 property in order to access Gaskins Road. The true corner, the true front line of this 1512 property, is the corner. When they did come back, some years back, for rehabilitation of 1513 the barn, Mr. Ralph Higgins spoke with Earl Clark, and they said, “there’s your corner; 1514 there’s your front and side yards.” They decided at the time, when the permits were 1515 granted for renovation of the barn, which that basically said, “the front yard sits at this 1516 location; the rear yard therefore is this location; you’ve got 50 feet here; you’ve got 20 1517 feet, which makes your side yard. You’re good to go; go ahead and get your permits.” 1518 This is the way it’s been, and I believe it’s been interpreted that way ever since. I’m not 1519 speaking for the staff, but I believe they’re trying to say, “let’s be rather safe than sorry; 1520 let’s clean it all up since we’re looking at the big picture.” Maybe the front yard is 1521 actually right here; the location of the barn doesn’t change; and this is actually its 1522 historic location; this is always where it’s been located. The property lines don’t change, 1523 and we can’t move the property lines, because Mr. Ralph Higgins’ property is right here. 1524 His home is right there, is located at that spot, so if we actually move the property lines, 1525 we’re going to put him in violation of the setback requirements, so we’re kind of between 1526 a rock and a hard place. I think literally that’s the interpretation, and it’s a better safe 1527 than sorry kind of request, and that’s what we’re asking for today. Again, I don’t think 1528 it’s impacting anyone by asking that because nothing’s being moved. It is what it is 1529 today. And finally, I think we’re going to come to what I think is probably the more 1530 controversial piece of this entire request, which is after taking off parcel 2A to merge it 1531 with 6A, taking off parcel 2D to merge it with the Ralph Higgins property to get rid of any 1532 further Daniels Road access, we’re left with 2 lots. What we’re requesting for 2 lots, 1533 which we would ask for a subdivision, off of parcel 2C and 2B. Parcels 2B and 2C can 1534 meet every other lot zoning requirement, but for the lot width requirement. They meet 1535 the acreage requirement; they’ve got the area; they’ve got the space for the buildings. It 1536 literally is just that the lot width on this property along Gaskins Road – originally this lot 1537 had 336 feet of lot width along Gaskins Road. Back in the 1960’s, from what I 1538 understand from the history, again relying on Mr. Ralph Higgins, was that the properties 1539 were sold to their predecessors to Mr. Schultz here, and to Mr. and Mrs. Hancock over 1540 here, was all part of the same parcel. At that time it was about, again we understand, 1541 just antidotal evidence, not being able to locate the Code, was 175-foot lot width 1542 requirements. As I said, we currently have 336 feet. I’m not sure where they came up 1543 with those numbers and what they had left over, but it was their understanding that the 1544 intent was ultimately to divide the lot into 2 at some point in the future. When the 1545 properties were sold off, that created the parcels that we’re looking at now. We’re 1546 simply trying to reconfigure the lot, to make it a little bit more user friendly, and to be 1547 able to use parcel 2B for the family at some point in the future. One of the ways we

July 26, 2001 34 1548 could get around this entire variance again, is to make parcel 2A a public road. Once 1549 that becomes a public road, and we did the drawings, we’d take a look at the parcels, to 1550 be able to come up with the lot width necessary for both of these parcels. One lot would 1551 have to front on Gaskins, and the other lot would have to front on this parcel 2A, which 1552 would then be a public road. What we’re trying to do is avoid having to make that a 1553 public road, and I think the neighbors would agree, that that would change the character 1554 of the area by doing that. We feel that this is the best configuration for the property. By 1555 no means are we wed to this. There’s been some discussion of “well, gee, can this leg 1556 go over opposite this leg.” Well obviously, unless you’re conditioned specifically to this 1557 layout, we’re asking for a 50-foot lot width and 150-foot lot width variance. Therefore, 1558 we could make the 50 foot over and across this area. You could make us go to 86 feet 1559 if you wanted to, and by doing that, this pushes parcel 2B up closer to the barn, which 1560 we were trying to create some space right here. We could also move parcel 2D, cut off 1561 all lot frontage, and ask you to grant us lack of public road frontage, to go in and out to 1562 the barn through Daniels Road if we requested. There are a lot of options here, but this 1563 is what we came forward and presented with. 1564 1565 What we were ultimately trying to do, and I think the Higgins are just as interested in this 1566 as any of the other neighbors, is to preserve the character of the neighborhood, to 1567 preserve the character of what we ultimately have are 3 buildable lots, and what we’re 1568 asking for is to make it into 4 buildable lots, which they could do but for this lot width 1569 requirement, and what they’re trying to do is to avoid having to put a public road in, over 1570 and across parcel 2A. I think I’ve gone over my time limit, even though there isn’t a time 1571 limit. I would ask for you to consider one additional consideration. In discussing this 1572 case with the staff, we brought forward, as I said at the very beginning, this whole case. 1573 We wanted to let you see everything that we’re doing, what we want to do, maybe get 1574 some feedback from you, and ask for the variance approvals that we’re asking for 1575 today. But there are no plans, and they’re talking with the family, to be able to locate 1576 the sons and take care of the financing. The one concern I had for the family, was that 1577 there usually is in the approval letter, a 1-year time limit. I looked in the state Code; I 1578 looked in the County Code, and I found out you have rules that I didn’t have a copy of, 1579 and that’s in your rules, that all variances must have a building permit within 1 year’s 1580 time. I would simply ask, if it’s appropriate to you, to waive that requirement for the 1- 1581 year time. They want to make sure they do things right, and certainly Mr. Ralph Higgins 1582 and Miss Janie Higgins are very concerned about what goes on here. Parcel 7 will be 1583 going to Ken Higgins, the second brother of the family, and they’re hoping parcel 6A 1584 and parcel 2B will go to one of the grandchildren of Mr. Ken and Mary Higgins. They 1585 just have to work that out, and they’re afraid that the 1-year time limit, they don’t want to 1586 have to come back. I’m not sure what the policy reason is for that, but I don’t believe, 1587 and I’ve submitted to the staff the state Code and the County Code, where we couldn’t 1588 find any provisions requiring that you impose that as a condition. Obviously, I was right. 1589 Finally, I believe we’ve met all jurisdictional prerequisites for each of the zoning 1590 requests. Each of the properties was acquired in good faith as it came through the 1591 estates of Mary and Ken Higgins. They have little, if any, impact on the surrounding 1592 properties. Each of the requests is a unique situation because of topography, location, 1593 shape, or otherwise, that is not shared by other properties in the area, and the failure to

July 26, 2001 35 1594 grant these variance requests will cause a hardship and an inability to use the property. 1595 Without the variance no home can be constructed on parcel 7, 2B or 6A, and without 1596 the variance for the rear yard, the barn will have to be moved. I believe these all qualify 1597 for the hardship that we have to present to you today. For these reasons, we ask you to 1598 confirm each of the variance requests, and I’ll be happy to answer any questions for 1599 anything I haven’t covered. 1600 1601 Mr. Kirkland - Any questions by Board members? Okay, those who wish to 1602 speak, let’s hear those who are for the case first. That was quick. All right, the opposed 1603 please come forward. If you would, sir, state your name for the record. 1604 1605 Mr. Thornton - Mr. Chairman, members of the Board, my name is Jim 1606 Thornton. I’m an attorney representing Dr. and Mrs. William Hancock, who own the 1607 property at the southwest corner of Daniels Road and Gaskins Road. You’ll see that 1608 the parcel 2 that we’ve been referring to, wraps around the Hancock property. And it 1609 may be best to put up the unmodified version (referring to visual props), since I’ll be 1610 referring to these parcels by number, and they’re set out on that. The Hancocks, along 1611 with the Schultz family, who own the property south of parcel 2, are the neighbors who 1612 are most affected by this request, and I’ll address these variance requests from the 1613 least objectionable to the more objectionable. 1614 1615 Mr. Balfour- Could you point out the Hancock property again sir. 1616 1617 Mr. Thornton - Variance 108 is the one that refers to parcel 2, and it actually 1618 has 2 portions. The Hancocks have no objection to the request that the rear setback of 1619 the barn be changed to be permitted to be 20 feet. Variance 108 does also have the 1620 aspect to it, that it permits the 50-foot lot width, and the Hancocks do object to that 1621 aspect of that case, as I’ll discuss more in just a moment. Variance 110, which is the 1622 parcel 7 request, the Hancocks have no objection to that variance request, provided that 1623 the 1-dwelling limitation is added as a condition. The Hancocks real objection is to 1624 variance 109, and the portion of variance 108 that relates to the 50-foot lot width and 1625 50-foot road frontage for parcel2. This application simply doesn’t meet the legal 1626 requirements for a variance request. Those requirements are set out in Subsection B of 1627 Section 24-116 of the Henrico Code, and I’ve included a copy of that at tab 1. There 1628 are 4 sections in there. The first 3 really set out the requirements for the variance. 1629 Section 1 is sort of the road map of what the requirements are. Section 2 gives the 1630 applicant the option of either showing that there’s something exceptional about this 1631 property that would make regulation unreasonable, or that the variance is necessary to 1632 alleviate a hardship. The applicant can prove either one of those two. Step 3 is that all 1633 variances are in harmony with the intended spirit and purpose of the chapter. Any after 1634 that, there are 2 more requirements to be met. I won’t go over the Section 2 1635 requirements in detail. I think that in large part they restate the Section 1 requirements, 1636 and most requests that meet the Section 1 requirements will also meet the Section 2 1637 requirements, whereas we contend here an application does not meet those Section 1 1638 requirements, it will not meet the Section 2 requirements. Section 3 is one last finding 1639 that the Board must specifically make, regarding the general or recurring nature of this

July 26, 2001 36 1640 problem. 1641 1642 So going back to Section 1, which is the road map which sets out what needs to happen 1643 for a variance to be granted, the first step is that the property must be acquired in good 1644 faith. That doesn’t mean that there needed to be some devious purpose, or anything of 1645 that sort. The question was, was it acquired with a knowledge of the problem that the 1646 property has, or was it acquired without a problem that subsequent changes to the 1647 ordinance later created. I’ll submit to you that parcel 6A does not meet this 1648 requirement. Parcel 6A was created in 1995 by this applicant. This applicant carved a 1649 piece of the Ralph Higgins parcel off, and created a parcel that had no road frontage, 1650 that had no access. Now that they would like to develop this parcel, they are coming to 1651 this Board and saying, “we have created a parcel that has problems. Board, you fix it 1652 for us.” The case law on this is fairly clear, and I’ve included a case at tab 4, Abingdon 1653 vs. Combs, where the Virginia Supreme Court considered this situation, and what they 1654 have said, is that self-inflicted hardships cannot be remedied by variance. This is a 1655 classic self-inflicted hardship. This property was a part of the Ralph Higgins parcel, had 1656 access to Daniels Road. It was carved out and created in a manner that prevented it 1657 from having access, that prevented it from having frontage, and this Board cannot grant 1658 a variance to fix that problem. The second of the 2 steps under Section 1 of the 1659 ordinance, is that the property must either have something exceptional about it, that 1660 would make application of the rules unreasonable, or that the variance is needed to 1661 alleviate a hardship. There is nothing exceptional about parcel 2; it’s not exceptionally 1662 shallow, it’s not exceptionally narrow, there’s nothing unusual about it topographically. 1663 The only thing about parcel 2 is, it does not have as much frontage as the applicants 1664 wish it did. There are pieces of property all over the county that are limited by either 1665 their acreage or their frontage or something else. In the R-0 district, 200 feet of road 1666 frontage is required. If you have 200 feet of road frontage, you get a lot. If you have 1667 400 feet, you get 2 lots. If you have 380 feet, you get 1 lot. 1668 1669 Mr. Balfour- Mr. Thornton, what do you think of Mr. Condlin’s comments 1670 that if they don’t get what they’re asking for here, they’re going to put a public road in 1671 there? 1672 1673 Mr. Thornton - Well, I think what we’re dealing with is the variance request 1674 that’s before us. Now whether the applicants can come up with a possible scenario that 1675 might be more objectionable, that’s always something that’s a possibility when you’re 1676 considering zoning requests, but I would contend that for this particular variance 1677 request, the property does not meet the requirements. 1678 1679 Mr. Balfour- Had they left it as one big lot, not divided it off in ’95, what 1680 would you suspect they would have done with it then that would be better, looks like 1681 they’d still have to, if they’d subdivided it and put several homes in there, they probably, 1682 as you suggested, would have a cul-de-sac coming in from Daniels Road, which is a 1683 private road. 1684 1685 Mr. Thornton - Now I would suggest to you, that the regulations cannot be

July 26, 2001 37 1686 interpreted to eliminate all reasonable uses of the property, and I would suggest to you 1687 that a 7-acre piece of property that the Ralph Higgins parcel was, is not an 1688 unreasonable use of that property, given it’s configuration. That property had certain 1689 limitations. It was not unreasonable for the county to impose limitations on the 1690 development of that property. In this case, those are limitations that this property can’t 1691 meet. 1692 1693 Mr. Balfour- I’m not sure I understand what you’re telling me. How would 1694 you develop it if you had 7 acres sitting there with only access to Daniels Road? 1695 1696 Mr. Thornton - What I’m saying is that the original Ralph Higgins parcel, the 1697 7-acre parcel, as it sat, could only be developed as a single-family residence, a very 1698 valuable piece of land that would support a very valuable house. That’s not an 1699 unreasonable use, and it’s not something. The ability to develop a piece of property to 1700 its maximum intensity is not a property right that any particular landowner has given to 1701 him by virtue of owning the property. The only requirement of the zoning ordinance is 1702 that the zoning ordinance not unreasonably interfere with the use of the property. The 1703 requirements here do not unreasonably interfere with the use of the property. 1704 1705 Mr. Balfour- Your solution would have been to have one house on all that 1706 property, and he’d get to Daniels Road ……………. (Unintelligible) 1707 1708 Mr. Thornton - I think that the problem ……………. (Tape 1 ended and did 1709 not automatically change over to Tape 2 without interruption; was caught within 1710 seconds, but some transcription lost) 1711 1712 …………….Parcel 7, and creating a very nice 7-acre lot. It can be put back where it 1713 came from with parcel 6, and create a very nice 7 ¾-acre lot, or it can be combined with 1714 parcel 2, creating a somewhat odd 7-acre lot, probably not a good solution on that one. 1715 1716 Mr. Balfour- You’re saying he made a mistake in the first place in selling 1717 off part to Schultz in parceled 1-acre lot? 1718 1719 Mr. Thornton - I can’t go back to the time that those lots were sold and don’t 1720 know what the motivations were and don’t know what the reasons were. I think all we 1721 can do is deal with the property as it exists now. As the property exists now, it is not 1722 entitled to the variance that’s being requested here. 1723 1724 Mr. Balfour- I guess that’s the problem I have with it, because it looks like 1725 to me ……………… (trailed off). 1726 1727 Mr. McKinney- Was Dr. Hancock’s property part of this property? 1728 1729 Mr. Thornton - At one time it was. Again I would suggest that to the extent 1730 that the selling off of parcels has left too little road frontage, that is another example of 1731 the self-inflicted hardship, and one that’s not appropriate to the variance remedy.

July 26, 2001 38 1732 1733 Mr. Balfour- That’s what bothers me. Had he not done that, and he had 1734 one big lot there, the other 2 lots had not been sold, I suspect they’d still be coming out 1735 on Gaskins Road somewhere eventually. 1736 1737 Mr. Thornton - Which ones? I’m sorry? 1738 1739 Mr. Balfour- If they had not sold off the 2 that you just said they chose to 1740 sell off for some reason earlier, and that was one big parcel of land sitting there, I 1741 suspect they would have had maybe more than one, maybe a couple of entrances onto 1742 Gaskins Road, is all I’m saying. 1743 1744 Mr. Thornton - I really can’t speculate about what might have happened if 1745 they’d aligned the property differently. I think we need to deal with the property as it is, 1746 and the request as it is. The final step of the variance process is a requirement that all 1747 the variances be in harmony with the intended spirit and purpose of the chapter. I think 1748 this is where this request really fails. The whole purpose of the frontage and lot width 1749 requirement is to prevent large tracts from shooting off strips of land to the public road 1750 to get access. It’s not hard to imagine a worst case scenario for that type of 1751 development, and I think what is being proposed here comes pretty close to it. I think 1752 this type of development is what the supervisors were trying to avoid when they added 1753 the lot frontage requirement. Instead of a driveway every 200 feet, which was what it 1754 was imagined by the ordinance, when you factor in the Schultz driveway just over the 1755 line from parcel 2, there are going to be 4 driveways within 400 feet available to this 1756 property, and I think that is not at all what the Board had in mind. This is not only not in 1757 harmony with the intended spirit and purpose of the chapter, it is exactly what the 1758 zoning ordinance is trying to avoid. Section 2 of the variance requirements again 1759 requires certain things that I think, if you agree, that the property does not meet the 1760 Section 1 requirements, it probably will not meet the Section 2 requirements either. 1761 Section 3 requires that the Board specifically find that the situation is not of a general or 1762 recurring nature as to make it reasonably practical for the formulation of a general 1763 regulation for such condition. In other words, does this happen enough that there ought 1764 to be a rule to govern it? I would submit to you that every piece, or almost every piece, 1765 of R-0 zoned property in the County is limited in development potential by either 1766 acreage or frontage. The fact that this particular piece is limited by frontage is not 1767 particularly unusual; it happens all over the County. If the supervisors had wanted 1768 exceptions in this situation, they could have easily passed an ordinance that said “200- 1769 foot lot widths are required unless you’ve got a lot of acreage. Then you only need 50.” 1770 But that wasn’t what they did, and the reason was that they wanted to prevent this type 1771 of development. I’ll close with a quote from the supporting statement in the application, 1772 on page 6, under paragraph 1, “where there’s an ability to meet every other zoning 1773 requirement to allow parcel 2 to be divided into 2 lots, there’s simply not enough 1774 frontage on Gaskins Road.” There simply is not enough frontage. The Hancocks 1775 couldn’t agree more. This property variance request should be denied, and I will submit 1776 to you that it comes so far from meeting the variance requirements that it must be 1777 denied. Thank you.

July 26, 2001 39 1778 1779 Mr. Kirkland - Any questions? All right, next person to speak in opposition. 1780 Would you state your name for the record sir. 1781 1782 Dr. Dingledine - I’m William S. Dingledine, and I live across the street from 1783 the property involved. We have 5 acres, and 400 feet on Gaskins Road, which extends 1784 from the corner of the Schultz’s lot, beyond what is currently showing. (distributes a 1785 handout) I request that you review this before making any decision. We are opposed to 1786 this variance for several reasons. We feel that creating an additional lot is not in the 1787 character or the flavor of this neighborhood, and attempting to do so by creating a 1788 variance is foreign to the purpose of the County Code and Ordinance. I think I can 1789 answer Jim Thornton’s comment about what the requirements were some years ago 1790 when we bought our house in 1963. The requirements were that this was R-0’d and 1791 had to have 200 feet. If I remember correctly, this went way back to the previous 1792 owners, so that would take it back some 50-60 years. We’re concerned about the 1793 changes that would occur on the tree line, along the road. You may remember in the 1794 past two years there’s been all this construction putting in the water line or the water 1795 pipes from the pumping station down below Gaskins Road, below the railroad tracks up 1796 to the treatment center on Three Chopt and Gaskins. In doing so, we were required to 1797 give up 10 feet of our land, because there were trees partly on County land that nobody 1798 wanted to remove. Now with the creation of these variances, they would end up 1799 removing a number of these trees, in fact probably half of them, if they were going to put 1800 in roadways. As has been previously pointed out, including the Schultz’s drive, you 1801 would have 4 roadways in a distance of some 370-380 feet. We would also like to point 1802 out that this property had been in the same family for a number of years. In 1803 reconfiguring and selling off property, the result has been that they have landlocked 1804 certain parcels. This, to our way of thinking, does not create a reason to grant a 1805 variance for the purpose of now, getting access to that particular property. We also feel 1806 that the Higgins Family Partnership could be divided and resolved without offering 1807 variances, or without approving variances. We understand the need for the rear 1808 variance for the home that’s built where the old barn was, and we certainly don’t object 1809 to that. Are there any questions I can answer? 1810 1811 Mr. Kirkland - Any questions by Board members? Thank you. 1812 1813 Dr. Dingledine - I would add that we feel like if variances go through, in the 1814 future this would have certainly a detrimental effect on our property, which we’ve tried to 1815 create and maintain in accordance with County ordinances. Thank you. 1816 1817 Mr. McKinney- Dr. Dingledine, let me ask you a question. Let’s say that this 1818 is the Higgins property as a family, and so forth, and they decide to market this property 1819 without this variance, and they put in a subdivision, and they take what they’ve got here, 1820 which possibly could be 10 houses, 8 houses, maybe 12 houses – how do you feel 1821 about that? 1822 1823 Dr. Dingledine - I don’t see how you can put in 10 or 12 houses.

July 26, 2001 40 1824 1825 Mr. McKinney- All our zoning requires is 1 acre per lot. If they put all this 1826 property together and come off of Gaskins Road, with one entrance, public road, into 1827 this subdivision, that’s what they can have. Are you aware of that? 1828 1829 Dr. Dingledine - Yes, I’m aware of how much land is there. 1830 1831 Mr. McKinney- Well, the land can be developed in 1-acre lots. 1832 1833 Dr. Dingledine - But I don’t think you’d have that many lots. 1834 1835 Mr. McKinney- Let’s say you get 6 lots out of it – do you think that would be 1836 less impact than what this is, to, what you’re talking about, the neighborhood as a 1837 whole? 1838 1839 Dr. Dingledine - I think it depends on how it would be constructed, how it 1840 would be designed, and that’s for the future, and I really don’t know how I can answer it 1841 any more specifically. 1842 1843 Mr. Balfour- I think what he’s suggesting is, if you won your battle, you’d 1844 probably lose the war. 1845 1846 Mr. Kirkland - Any other questions? Okay, thank you sir. Anyone else in 1847 opposition? If you would sir, state your name for the record. 1848 1849 Mr. Schultz - My name is Donald Schultz. I own the property adjacent to 1850 the Higgins property, and adjacent to parcels 2A and 6A, which is what I have to 1851 express some opposition to. Looking to the future, as someone was just mentioning, 1852 parcel 6A, is there any assurance that there would not be any further development back 1853 in there, to put 4 homes back in that area? And that the proposed 50-foot frontage 1854 would not become a public road, which borders my property, and if that were a public 1855 road, that would definitely be detrimental to the value of my property I feel? One, we 1856 would be destroying what has been designated by the County as a wetland, a protected 1857 wetland in that area, and also just the value of my property, having a public road on that 1858 side of it, I feel would be detrimental to the value of my property. 1859 1860 Mr. Balfour- I think Mr. Condlin said there was not going to be a public 1861 road, but he can answer that when he gets up here. 1862 1863 Mr. Schultz - Is there any assurance that that cannot be rezoned in the 1864 future, to do that? 1865 1866 Mr. McKinney- If there’s a condition on this case. Let me ask you something 1867 Mr. Schultz. Have the neighbors met with Mr. Condlin or the Higgins? 1868 1869 Mr. Schultz - I have not. I’ve tried to contact Ralph, as he has tried to

July 26, 2001 41 1870 contact me, and we played a little phone tag; we never did get to speak. 1871 1872 Mr. McKinney- Because apparently there are some concerns with the 1873 adjoining neighbors, etc., and they’ve been notified this is by law that the Higgins want 1874 to do this, and it appears that you have not sat down at the table and talked with them 1875 and addressed your concerns to their attorney, Mr. Condlin. Besides that, if this could 1876 be taken care of prior to getting here, you might ask to do this. I don’t know what their 1877 feeling is on it, but in the final analysis, it might work better for everyone concerned. 1878 You’re concerned, “will this be developed?” Well, we never can say will it be developed 1879 50 years, 100 years down the road, but in the immediate future, in our lifetime, it may. 1880 You might be able to work it out where it would not be. I don’t know. 1881 1882 Mr. Schultz - Okay. I understand that. And I think I’ve expressed my 1883 concerns, so I’ve finished up here. 1884 1885 Mr. Kirkland - Thank you sir. Anyone else in opposition wish to speak? If 1886 not, Mr. Condlin, would you like to rebut? 1887 1888 Mr. Condlin - Yes sir. Mr. Chairman, members of the Board. I’ll answer 1889 Mr. McKinney’s question. We had talked with and, unfortunately I know, as Mr. Schultz 1890 has said, Ralph had gone around and thought it would be better if he and Janie talked 1891 to the individual neighbors, to sit down and go over things and their concerns. I’ve 1892 spoken to a number of neighbors, and I asked for the conditions, we’ve talked to them 1893 over the phone, or I met with them otherwise, but we have met with them, instead of as 1894 a group, but as an individual basis, because we felt we knew which property owners 1895 were specifically going to be affected by this. 1896 1897 Mr. Balfour- How many did you contact and talk with? 1898 1899 Mr. Condlin - I guess probably about 5, 5 different folks, the Schultzes, the 1900 Hancocks, we talked to the Dingledines, and the CCV, so that’s 4 of the immediately 1901 adjacent, I know Mr. Tashjian was aware of it. 1902 1903 Mr. McKinney- Are the people here who are in opposition, who’ll raise their 1904 hand, who’ve been contacted by them? 1905 1906 Citizen I was not contacted. 1907 1908 Mr. McKinney- Ma’am, you can’t speak unless you’ve been sworn in. We 1909 just called for a show of hands. 1910 1911 Citizen- I’d like to speak when my turn comes. 1912 1913 Mr. Kirkland - Okay, no problem. 1914 1915 Mr. McKinney- So you’ve got how many again who were contacted?

July 26, 2001 42 1916 1917 Mr. Condlin - The 4 folks who are here. Everyone here was contacted. 1918 We sent the letter and then we called up. 1919 1920 Mr. Balfour- Are some not here who were contacted, is my question? 1921 Besides CCV? 1922 1923 Mr. Condlin - Well we do have some adjacent folks. Mr. Tashjian is the 1924 only other adjacent one, and CCV. They’re all here, the folks that are here representing 1925 CCV, and then Mr. Tashjian’s here as well, they were all contacted as the adjacent 1926 neighbors. I believe that’s all the adjacent neighbors that were. I know some of the 1927 other neighbors, from conversations, were aware of this, not neighbors, but people in 1928 the area. 1929 1930 Mr. Kirkland - Mr. Condlin, before you get into your rebuttal, that woman 1931 just made a statement that she’d like to speak, and I called for all of the “for” and the 1932 “opposition,“ and she didn’t raise, she would like – ma’am, do you want to speak? Are 1933 you in opposition or for the case? If you would come forward, because once he starts 1934 his rebuttal, that’s going to cut off any more talk. He’s the last man to talk. If you would 1935 state your name for the record. 1936 1937 Mr. McKinney- Was she sworn in? 1938 1939 Ms. Hancock - My name is Doris Hancock. We are on the corner lot. It’s 2 1940 acres. We have no plans to divide it. We received this literature after we had plans for 1941 a few days vacation, so we did not have a great deal of time. But I did go over to speak 1942 with Janie Higgins. None of her family contacted us in regards to this, although we 1943 received all of the written material. So then there was nothing that was gained when I 1944 talked with Janie Higgins, so we contacted and got our very nice attorney to help us out 1945 on very short notice, and I think he’s done very well. Thank you. 1946 1947 Mr. Kirkland - Thank you ma’am. Does anyone have anything else to say, 1948 because after the rebuttal starts, it’s all over. You’ve already spoken sir, no more repeat 1949 information. Okay, go ahead. 1950 1951 Mr. Condlin - Thank you sir. I believe I’m very nice too, just for the record, 1952 but I may not have done as well, so we’ll leave it at that. I’m not as good looking either, 1953 I know that. But let me just throw a couple of things. I’ll be real quick. Parcel 6A, in 1954 talking with, and I probably oversimplified things in saying that it was coming through 1955 the estate. When Mr. Ralph Higgins, the father, passed away, his instructions for his 1956 wife were for her to live in the house that Mr. Ralph Higgins’ son is currently living in, 1957 that’s not part of this variance request. She maintained that, and she gave parcel 6A to 1958 the children. The children at that time organized the Higgins Family Limited Partnership 1959 to create for tax and estate purpose benefits, for all the children to enter into on the 1960 advice of their accountant. That’s when they received parcel 6A. When Mrs. Higgins, 1961 the mother, passed away, that’s when the property passed to Ralph for the home where

July 26, 2001 43 1962 he currently lives, and Ralph Higgins’ son, currently here. That’s how all this, and the 1963 rest of the property at that point, which was then owned by Mrs. Mary Higgins, the 1964 mother, all the rest of that then came into the children. That’s how the project – I 1965 probably oversimplified it, but it did all come into the Family Limited Partnership 1966 pursuant to the requests of the estates, the first time to the father for parcel 6A, and the 1967 remainder of it for the mother’s estate, Mrs. Mary Higgins. 1968 1969 Mr. Balfour- Did the Higgins Partnership sell Mr. Schultz his property? 1970 1971 Mr. Condlin - No sir, I believe that was done, and I talked to Mr. Ralph 1972 Higgins for some history on that; that was done back in the 60’s, and I believe Mr. 1973 Schultz maybe is the third, forth owner of that, somewhere along there. Both the 1974 Hancock property, which I believe was back in the 60’s as well, from your predecessors 1975 in title, and the Schultz property, were sold back in the 60’s, and that’s what started this 1976 problem, where they sold off those pieces of property. As to parcel 6A, as I’ve 1977 explained, I do believe it was acquired in good faith, because it was acquired as it’s 1978 shaped, as it is today, through the estate, and the estate did not own the house at that 1979 time. Mrs. Mary Higgins, the mother, did. We just can’t get to the property; that’s the 1980 basic issue we have here. We need to access it to build a home, and it’s as simple as 1981 that. We want to be able to access it by parcel 2A. We can access it by an easement 1982 and come back again another day for you, if you would prefer, to get a variance for lack 1983 of public road frontage. Or as I said, as you understand, we can go forward and simply 1984 put a public road. They don’t want to do that. I’m not going to say that they’re martyrs; 1985 it’s expensive; that’s the bottom line. 1986 1987 Mr. Balfour- What do you think about a condition about that? 1988 1989 Mr. Condlin - I’m not sure legally how that would work. What if we decide 1990 not to put any variance on it, and we just go to dedicate that road? I’m not sure how 1991 that works. I can’t guarantee, nor do the Higgins want to guarantee, something might 1992 happen to Mr. Ralph Higgins, and one son might move into the home up front, and they 1993 might sell that and subdivide that into a lot or two extra. I don’t know. They can’t 1994 guarantee that, and I don’t think that at any time in my conversations with the neighbors, 1995 did we ever express that that was a distinct possibility, that it would never happen. We 1996 don’t know what’s out there, but what we’re trying to do is to put in a private driveway. I 1997 can tell you, as I told you before, if we get denied a variance, and you tell us it’d be 1998 much better off that we go forward with a lack of public road frontage and get an 1999 easement, we can still come back and have parcel 2, owned by the Higgins Family 2000 Limited Partnership, dedicate that road, put it into the public road frontage, get into 2001 parcel 6 that way. And we can always do that if we don’t get our variances. That’s just 2002 the reality of the situation; they want to be able to make use of the property. Mr. 2003 Thornton, as always, does a fantastic job, and he referenced the Code. I will read you 2004 this; you know the Code better than I with respect to this. Every time I talk to Susan or 2005 Ben, they always point something different out to me, that I didn’t know was there, but 2006 the say “by reason of the exceptional narrowness, shallowness, size or shape of a 2007 specific piece of property,” I would contend to you [Ben, if you could throw parcel 2 up

July 26, 2001 44 2008 there], I think parcel 2 meets every one of those things. This is about as oddly 2009 configured lot as you can get. We are benefiting, we believe the neighborhood, we are 2010 benefiting the county, we are benefiting everyone, including probably the Higgins 2011 themselves, by being able to lop off parcel 2D and make that part of Ralph Higgins’ 2012 property, by being able to access parcel 6A with a private driveway and being able to 2013 use that, potentially, for just one lot. If we have to put a public road in to pay for it, I can 2014 almost guarantee you, they’re going to have to subdivide it to help pay for that public 2015 road that would have to go in there. And finally, I would contend to you with respect to 2016 parcel 2, at the time of the sale, the Schultz and the Hancock property, in the evidence 2017 that we have from Mr. Ralph Hancock, there is farther down Daniels Road some smaller 2018 lots, that were between 150 and 175 feet, that were intended to be sold. I don’t know, 2019 and I don’t have the Code, at that time, when these properties were sold, and that’s my 2020 mistake, that maybe that would have been the best thing, but I think the intent was, they 2021 received it in good faith; they’re trying to make the best of an odd situation with, what I 2022 would consider a lot that is certainly exceptional in his narrowness, exceptional in its 2023 shallowness, size or shape, has a barn that’s what I deem an historic barn, although it’s 2024 not certified as such, a historic residence on there. It’s a very neat area, and its location 2025 is very important that it be put there. Altogether, we’re not going to try to destroy trees; 2026 we’re trying to avoid that. We’re not trying to destroy the character of the neighborhood; 2027 we’re trying to avoid that. We’re trying to avoid the detrimental effect that all the 2028 neighbors are concerned about. There is no ulterior motive here; we’ve laid all the 2029 plans on the table. We’re asking you to just take a look at the whole picture and say, 2030 “this makes sense.” Maybe parcel 2C, because the Hancocks don’t want that strip on 2031 their side, we can flip the strip on the other side, so that parcel 2C accesses Gaskins 2032 Road over by parcel 2A. If we get the variance, we have the ability to do that, as long 2033 as you don’t condition that. We’ve talked with some folks, and as far as our position 2034 goes, I think this is the best situation for everybody concerned, given the situation today, 2035 and we do meet the requirements of the Code. Again, I’ll be happy to answer any 2036 questions. 2037 2038 Mr. Kirkland - Any questions of Mr. Condlin? No other questions, that 2039 concludes the cases. 2040 2041 Mr. Kirkland - A-108, A-109, and A-110-2001. 2042 2043 Mr. Balfour - I move we approve them, but as I recall, there are a couple 2044 of amendments – 1. Mr. Blankinship, if we can do it, he wanted a waiver of a one-year 2045 building permit, I had a note to that effect. 2046 2047 Mr. Blankinship - Yes, they’d requested that. 2048 2049 Mr. Balfour - Can we do that? 2050 2051 Mr. Blankinship - I believe you can. You can suspend any of your rules on a 2052 unanimous vote. 2053

July 26, 2001 45 2054 Mr. Balfour - I think he had a pretty good reason for that. I move that we 2055 amend it to allow the waiver of the building permit if he’s not able to obtain it within one 2056 year. 2057 2058 Mr. McKinney- On that one dwelling? 2059 2060 Mr. Kirkland- On that one dwelling. On 110. 2061 2062 Mr. Blankinship - On all of them, I think is what he had in mind. He and I 2063 spoke about this a little bit in advance, and I believe. 2064 2065 Mr. Balfour - If you understood that, I’ll make it for all of them then. I think 2066 it was the second amendment, if we pass them in order, that he said there’d be only one 2067 residence on parcel 7, by my notes. I move that. Then I move for approval with the 2 2068 amendments. 2069 2070 After an advertised public hearing and on a motion by Mr. Balfour, seconded by Mr. 2071 McKinney, the Board granted application A-108-2001 for a variance to allow the 2072 existing dwelling to remain at 912 South Gaskins Road (Tax Parcel 123-A-2 (part)). 2073 The Board granted the variance subject to the following condition: 2074 2075 1. This variance applies only to the lot width and rear yard setback requirement. All 2076 other applicable regulations of the County Code shall remain in force. 2077 2078 Affirmative: Balfour, Kirkland, McKinney, Nunnally 4 2079 Negative: 0 2080 Absent: 0 2081 Abstain: Wright 1 2082 2083 The Board granted this request, as it found from the evidence presented that, due to the 2084 unique circumstances of the subject property, strict application of the County Code 2085 would produce undue hardship not generally shared by other properties in the area, and 2086 authorizing this variance will neither cause a substantial detriment to adjacent property 2087 nor materially impair the purpose of the zoning regulations. 2088 2089 After an advertised public hearing and on a motion by Mr. Balfour, seconded by Mr. 2090 McKinney, the Board granted application A-109-2001 for a variance to build a one- 2091 family dwelling at 916 South Gaskins Road (Tax Parcels 123-A-2 (part) and -6A). The 2092 Board granted the variance subject to the following condition: 2093 2094 1. This variance applies only to the lot width requirement. All other applicable 2095 regulations of the County Code shall remain in force. 2096 2097 Affirmative: Balfour, Kirkland, McKinney, Nunnally 4 2098 Negative: 0 2099 Absent: 0

July 26, 2001 46 2100 Abstain: Wright 1 2101 2102 The Board granted this request, as it found from the evidence presented that, due to the 2103 unique circumstances of the subject property, strict application of the County Code 2104 would produce undue hardship not generally shared by other properties in the area, and 2105 authorizing this variance will neither cause a substantial detriment to adjacent property 2106 nor materially impair the purpose of the zoning regulations. 2107 2108 After an advertised public hearing and on a motion by Mr. Balfour, seconded by Mr. 2109 McKinney, the Board granted application A-110-2001 for a variance to build a one- 2110 family dwelling at 301 Daniels Road (Tax Parcel 123-A-7). The Board granted the 2111 variance subject to the following conditions: 2112 2113 1. This variance applies only to the public street frontage requirement. All other 2114 applicable regulations of the County Code shall remain in force. 2115 2116 2. No more than one dwelling shall be built on the subject parcel. 2117 2118 Affirmative: Balfour, Kirkland, McKinney, Nunnally 4 2119 Negative: 0 2120 Absent: 0 2121 Abstain: Wright 1 2122 2123 The Board granted this request, as it found from the evidence presented that, due to the 2124 unique circumstances of the subject property, strict application of the County Code 2125 would produce undue hardship not generally shared by other properties in the area, and 2126 authorizing this variance will neither cause a substantial detriment to adjacent property 2127 nor materially impair the purpose of the zoning regulations. 2128 2129 Mr. Kirkland - Next case, Mr. Blankinship. 2130 2131 A - 62-2001 KARL AND TONY WOLPERT appeal a decision of the Planning 2132 Director pursuant to Section 24-116(a) of Chapter 24 of the County 2133 Code with respect to nonconforming status of the Richmond Yacht 2134 Basin, 9950 Hoke Brady Road (Tax Parcels 284-A-3, 4 and 5) 2135 zoned A-1, Agricultural District (Varina). The Planning Director has 2136 determined that Richmond Yacht Basin may continue its current 2137 operation without a Provisional Use Permit. 2138 2139 Mr. Blankinship - We are re-hearing A-62-2001. This case was decided 2 2140 months ago. Last month the representatives of the Richmond Yacht Basin asked the 2141 Board to reconsider their decision, and this morning, while I’m sure you would not 2142 accept any repeat of old testimony, we do need to hear the new information to be 2143 presented by Richmond Yacht Basin and then give the other parties the opportunity to 2144 reply to it. 2145

July 26, 2001 47 2146 Mr. Kirkland - All those who are going to speak on this case, including Mr. 2147 Moore, stand and raise your right hand and be sworn in. State your name for the 2148 record. 2149 2150 Mr. Blankinship - Do you swear that the testimony you are about to give is the 2151 truth, the whole truth, and nothing but the truth, so help you God? 2152 2153 Mr. Moore - I do. Yes sir, Mr. Chairman, my name is Glenn Moore. I’m 2154 an attorney. I’m here this morning on behalf of the Richmond Yacht Basin. Thank you 2155 for this opportunity to present some additional information for your consideration, with 2156 respect to Mr. Marlles’ determination that certain improvements made to the Yacht 2157 Basin property in 1996 were not significant enough in nature to require a provisional use 2158 permit. In other words, the nonconforming use status of the property could continue, 2159 notwithstanding those changes. What I’d like to do is present some evidence to you this 2160 morning which will give you a better idea of precisely what was done in 1996, in order to 2161 further protect the Yacht Basin property. That was the purpose of the improvements at 2162 that time. What I’d like to start with is an aerial photograph that we have of the property 2163 that was taken in approximately 1991. I can pass that to you. I think you will recall from 2164 the presentation a couple of months ago, that in 1986 there were some improvements 2165 made. I believe the boat shed on the right-hand side, or the western most boat shed, 2166 was added at that time, and consequently you had slips on both the north and south 2167 side of that structure were put in place at that time. You’ll see that to the west of that 2168 structure, there are some dolphins that are intended to break up debris, stop debris from 2169 coming down river and causing damage to the shed and the boats, and also you’ll see 2170 that there is one single pier or supporting structure for the dolphins, because out from 2171 the shed, that was in place in 1986, and you’ll see also that the area just to the west of 2172 the shed was used for purposes of docking boats at that time, and also there was a 2173 walkway along the western edge of that shed, that was in place in 1986. 2174 2175 In 1996, at the suggestion of Bob Nelson with Engineering Design Associates, and Mr. 2176 Nelson is here today, a couple of things were added. Improvements were added solely 2177 to protect the shed and the boats within the shed from debris coming down river during 2178 a flood situation. I have a plan that shows the actual additions that were made in 1996. 2179 What you see is that the walkway or structure that supports the dolphins at the lower 2180 end of the screen, was already in place. That was not added. The 2 structures that 2181 support the dolphins that are colored in green were added in 1996, as were the poles 2182 that you see inserted into the river bed to further provide protection for the boatshed. 2183 Those were essentially the only changes that were made to the facility in 1996. I have 2184 photographs of those. This is a letter that was written by Mr. Nelson in January of this 2185 year, that explains why these particular structures were needed for protection. I also 2186 show you, so you’ll understand why these particular structures were necessary, a 2187 picture of some damage that occurred as a result of debris coming down river from a 2188 flood. It’s interesting to see that that one structure that went out from the boatshed was 2189 able to stand up, whereas the shed itself was knocked down by the debris. There 2190 appears to be some effectiveness from these devices in protecting the structures. 2191 Unfortunately, they weren’t in place when that particular flood occurred. I think the

July 26, 2001 48 2192 important thing here, is the improvements that were made in 1996, were made for the 2193 purpose of protecting what was already there; the boatsheds and the docking areas 2194 were already in place. There was no expansion of the capacity of the marina as a result 2195 of those improvements. So I believe that particular determination was made by Mr. 2196 Marlles, and I believe it’s supported by the evidence that I’ve been able to give you this 2197 morning, that in fact there was no expansion of the nonconforming use, merely efforts 2198 taken to protect their integrity. 2199 2200 In the staff report that accompanied your package on this case, there was a suggestion 2201 that this particular facility has never been legal, and I would say to you that, I’m sure 2202 that Mr. Blankinship is able to review the Code, go back and based on what he knows 2203 today and his review of the Code, can make that determination. But I would also say to 2204 you that over the years, numerous building permits have been issued for improvements 2205 in the marina, and in fact, a letter that Mr. Marlles wrote to Forrest Parker in February of 2206 this year, noted that building permits were issued as recently as 1991, ’94 and ’96. At 2207 none of those times were any zoning changes required. I think what happens here is 2208 that over the years the interpretation of the zoning ordinance and applicable state law is 2209 done by reviewing individuals with facts and places at that time. I know you will agree 2210 with me, that Henrico County Planning officials are very zealous in making sure that 2211 zoning requirements are satisfied. I’ll have to say that I think in these instances, 2212 determinations were made when requests were made to modify this particular facility, 2213 that zoning requirements were satisfied. Otherwise, they would have been required to 2214 meet the zoning requirements in order to get the building permits and ultimately 2215 certificates of occupancy. Over the years a number of times, a determination has been 2216 made that this is a legal, nonconforming use of that property. For the reasons that I’ve 2217 stated this morning, I would like to ask that you reverse your earlier decision and affirm 2218 Mr. Marlles determination that there has been no expansion of the nonconforming use 2219 of the Richmond Yacht Basin, as a result of the protective devices installed in 1996, that 2220 consequently, no provisional use permit was needed to support the installation of those 2221 facilities. I’ll be happy to answer any questions members of the Board may have, and 2222 as you know, there are other people here who may be able to confirm some of the 2223 information that I’ve given to you, if you have any questions about that. 2224 2225 Mr. McKinney- Mr. Moore, let me ask you a question. If for some reason, 2226 these dolphins are not quite satisfactory, can you go ahead and add some more? On 2227 up the river? How far up the river can you go with them? 2228 2229 Mr. Moore - I would say that if they don’t add any capacity, expand the 2230 nonconforming use, I don’t know why you couldn’t do that, if you got the necessary 2231 building permits to do it. You’d have to go to the Virginia Marine Resources 2232 Commission, of course, to do that. 2233 2234 Mr. McKinney - Who controls the view of the river? 2235 2236 Mr. Moore - Who controls the view of the river? I have no idea who 2237 controls the view of the river. I think that the issue here today, Mr. McKinney, is just

July 26, 2001 49 2238 whether or not there’s been an expansion of a nonconforming use. Maybe the Virginia 2239 Marine Resources Commission ……………… 2240 2241 Mr. McKinney - I understand that, I’m not speaking of the boathouse; I’m 2242 speaking of the dolphins, that you say were put there in 1996? 2243 2244 Mr. Moore - 1986. This picture was taken in 1991, and you can see the 2245 facilities there. 2246 2247 Mr. McKinney - I thought we had testimony before that they were put there in 2248 ’95 or ’96. 2249 2250 Mr. Moore - The dolphins are the sets of poles at the end of the walkway, 2251 the pilings. I’m told, and there are people here that are with Richmond Yacht Basin who 2252 can confirm that they were there prior to 1996 and back to 1986. 2253 2254 Mr. McKinney - The dolphins were? But the walkways were not? 2255 2256 Mr. Moore - No, they were added. One of them was, the one at the 2257 bottom of the sheet was. The other 2, plus the poles that support them, are the only 2258 things added in ’96. 2259 2260 Mr. Kirkland- What permit was granted in ’96? You stated that there were 2261 some building permits granted for several years, and you said there were some granted 2262 – what was that for in ’96? 2263 2264 Mr. Moore - I’m not sure. I picked that up from Mr. Marlles’ letter. I do 2265 know, I am aware, my impression is that they did not get building permits for these 2266 structures that we have in question right now. They did go back, and they also did not 2267 get VMRC approval, but they have subsequently gotten that, they have obtained that. If 2268 we are successful in having a determination made that they do not have to be taken out, 2269 we’ll go back and apply for the building permits to make sure that they comply with the 2270 building code that’s applicable. 2271 2272 Mr. Kirkland - Any other questions of Mr. Moore? Thank you Mr. Moore. 2273 Mr. Marlles, do you have anything to add? And I’d like to ask you about that 2274 ’96………….. 2275 2276 Mr. Marlles - Mr. Chairman, members of the Board, good morning. I think 2277 Mr. Moore has probably covered most of the information I would have in my 2278 presentation. I do want to draw your attention, maybe this helps in the way of 2279 comparing what was there in 1991, which is the photograph on the top, showing the 2 2280 boats, and a more recent photograph on the bottom. Basically you can see what was 2281 added in 1996, which is the 2 walkways that Mr. Moore referenced. Regarding the 2282 question of building permits, and this is the building inspector’s records, indicate in 2283 1991, a building permit was issued for a shell building and a deck. In 1994 a building

July 26, 2001 50 2284 permit was issued for interior alterations, and the 1996 permit was for electrical work. I 2285 do not have copies of those permits right in front of me, so I can’t tell you exactly where 2286 on the property all of those permits were issued for, but it’s clear that there was a history 2287 of the County approving building permits for this property over a period of time. To sum 2288 up, I believe that, based on the information again, my position is that I don’t believe the 2289 work that was done in 1996 really was extensive enough to warrant the requirement for 2290 a PUP. The actual physical work done, I think it’s clear from the 2 aerial photographs 2291 that the use, the actual docking of the boats were there in 1991, so with that, I’d be glad 2292 to answer any questions. 2293 2294 Mr. McKinney- One question, the building permits, were they routed, as they 2295 are normally routed, through Planning and Zoning? 2296 2297 Mr. Marlles - Yes sir, we have indication on the most recent building 2298 permits, that they were signed off by personnel in the Planning Office. Unfortunately, 2299 they are no longer with us, but we have the records. 2300 2301 Mr. Kirkland - So basically you had 2 boats pointed one way; today you 2302 have 2 boats pointed the other way. 2303 2304 Mr. Marlles - That’s right. 2305 2306 Mr. Wright- Mr. Marlles, let me ask you a question. When the current 2307 zoning ordinance took effect in 1960, our notes say the zoning of the property remained 2308 agricultural. A marina was permitted by conditional use permit; that’s 1960. There was 2309 an expansion in 1986, a substantial expansion, and the ordinance in 1960 did not 2310 permit, says “original Yacht Basin was never legal because the ordinance did not permit 2311 that use.” 2312 2313 Mr. Marlles - Yes sir, that’s Mr. Blankinship’s staff report. 2314 2315 Mr. Wright- What’s your comment with respect to that? 2316 2317 Mr. Marlles - This has been, and I did allude to this at the first hearing, it’s 2318 sometimes very difficult to try to go back and reconstruct what was in the minds of the 2319 staff at that time, particularly since they’re not here. I can tell you, I’m becoming more 2320 convinced that, at the time, and in the past, and up until recently, staff did not feel we 2321 had jurisdiction for improvements actually constructed on the James River. That to me 2322 is the only logical explanation that I can come up with as to why staff signed off on those 2323 previous building permits. I think I mentioned to you at the first hearing that both the 2324 building official and I looked at this issue, literally for several months, including trying to 2325 get the advice of the County Attorney to determine whether we had jurisdiction, and it 2326 was only literally several days before the last BZA hearing in May, that we got a clear 2327 answer from the County Attorney’s office, that they believed we did have jurisdiction, so 2328 my explanation for that, or the best one that I can come up with, is staff at that time did 2329 not believe we had jurisdiction over the improvements over the James River.

July 26, 2001 51 2330 2331 Mr. McKinney- Are you saying that the County Attorney back then stated 2332 that we did not have jurisdiction? 2333 2334 Mr. Marlles - I didn’t see any record of that, but I did see, in terms of 2335 discussions, even current discussions with some staff members, not ones that were 2336 directly involved with the building permit, but with other officials who were here, I’m 2337 saying that there seems to be a question, up until recently, whether we had jurisdiction. 2338 I believe that in the past the staff did not believe we had jurisdiction. 2339 2340 Mr. Kirkland - So now we have an official document somewhere that says 2341 we have jurisdiction? 2342 2343 Mr. Marlles - I would consider it an informal opinion from the County 2344 Attorney’s office; I wouldn’t say it’s an official opinion. 2345 2346 Mr. Wright- Well is it your opinion that the expansion that was made in 2347 1986 added substantial addition? Since then a use permit was required for a marina, is 2348 it your opinion that those additions were valid, legal additions? 2349 2350 Mr. Marlles - I believe that at that time the staff did not believe that they 2351 had jurisdiction over approving that. 2352 2353 Mr. Wright- They didn’t believe it, but looking back now, if they did, would 2354 you consider those additions to be valid, legal additions? 2355 2356 Mr. Marlles - Given what we know today, given the advice of the County 2357 Attorney’s office, I would say that we would require a PUP for what was added in 1986. 2358 2359 Mr. Wright - Why wouldn’t you require it now? I’m not talking about these 2360 2 little walkways. If somebody does something that’s not valid, and you find out about it 2361 later, don’t you go back and require them to get a permit? 2362 2363 Mr. Marlles - Mr. Wright, I think we had this discussion at the last meeting. 2364 I would not, at this point in time, believing that the staff did not feel that we had 2365 jurisdiction in 1986, I would not at this time require them to go back and get a PUP for 2366 something that was actually constructed in 1985; I would not sir. 2367 2368 Mr. Wright- So what you’re saying is the staff action back then would 2369 bind you now. 2370 2371 Mr. Marlles - I would take that into account is what I’m saying. Just like I 2372 said that any future expansion may require a PUP. It depends on the degree of 2373 expansion, but generally speaking, I would not require a business who believed that 2374 they were lawfully abiding with the Code at that time, given my belief that staff probably 2375 did not feel they had jurisdiction in ’85 or ’86, require them to come back and get a PUP

July 26, 2001 52 2376 at this point in time. But I would, look at any future expansion, and in fact I think I did 2377 testify at the last hearing, that I would and did put the property owners on notice that 2378 any future expansion may require a PUP. 2379 2380 Mr. Balfour- You think it’s a form of “grandfathering,” I gather? 2381 2382 Mr. Marlles - From a practical standpoint, yes sir. 2383 2384 Mr. Wright- What you’re really saying is that they’re “grandfathered” 2385 because of the action that was or wasn’t taken back in 1985. 2386 2387 Mr. Kirkland- That you didn’t think we had jurisdiction over the river? 2388 2389 Mr. Marlles - Yes, that’s my belief – the staff didn’t think they had 2390 jurisdiction at that time. 2391 2392 Mr. McKinney- When did a PUP come into existence? 2393 2394 Mr. Marlles - In 1995. 2395 2396 Mr. McKinney- So 1995 is when PUP came into law, correct? So you didn’t 2397 even have a PUP back in 1986? 2398 2399 Mr. Marlles - There was a requirement for a conditional use permit at that 2400 time. 2401 2402 Mr. Wright- 1960 – that’s my point. 2403 2404 Mr. McKinney- But the thing about it, is apparently the Richmond Yacht 2405 Basin did what they were supposed to do, filed their permits, they were routed through 2406 your departments, the other departments, and everybody signed off on it. So now 2407 you’re saying that they shouldn’t have done it. This is years down the road. I’m not 2408 saying you said it, but your appeal of your decision is saying we need to go back and 2409 make these people do it, that they got all the approvals. 2410 2411 Mr. Wright- That’s what the Board said at the last meeting. 2412 2413 Mr. Marlles - Yes sir. I think, at least from my perspective, part of the new 2414 information here that we wanted to clarify for the Board is, and I think it’s illustrated in 2415 these photographs, is the fact that the actual use, the docking of the boats, was in use, 2416 at least back into 1991. I at least wanted the Board to see, have a clear indication, of 2417 how the extent of the physical improvements that were added in 1996, which I think, 2418 from my perspective, are relatively insignificant. I think the point was also made by Mr. 2419 Moore, that the improvements that were added, the 2 additional sections to the dock, 2420 were done primarily to add some structural integrity to the existing boatshed and protect 2421 it from flooding, as opposed to expanding the use.

July 26, 2001 53 2422 2423 Mr. Kirkland - Any other questions of Mr. Marlles? Thank you sir. I guess 2424 we need to hear from the other side now. If you would come forward sir. Would you 2425 state your name for the record sir? 2426 2427 Mr. K. Wolpert - My name is Karl Wolpert, along with my brother, Tony, we’re 2428 adjacent property owners to the marina. First of all, I just want to thank the Board for 2429 agreeing with us last time we met. We feel the Board made the proper decision, and we 2430 hope that the Board will stay with their previous decision. I would like to address the 2431 point that was just made by Mr. Moore. The top photo is dated to be from 1991. I have 2432 with me a copy of the 1986 VMRC permit application that I’d like to put up on the 2433 screen. There’s one drawing that was included with that application that I’d like to put 2434 up. If you could move that all the way to the left side, I want to see the title block for just 2435 a second, so you can see what the date was, the bottom right. That was 1986, and 2436 where your finger is there, that was the Engineering Design Associates drawing that 2437 was prepared on behalf of the marina and submitted with the application. 2438 2439 Now, if we can move back to the other side where we were. Do you notice over here, 2440 there is that pier that was in that photo in 1991, is not there. In fact, there’s no 2441 indication that there was ever a plan to moor any boats on the western edge of that 2442 structure. We were copied on this application, and when we saw this application, we 2443 saw this line running up and down, which is an extension of our property line. When we 2444 received this, we really didn’t have an objection, because our river rights, our river 2445 frontage, was not being violated. This was what was proposed and approved in 1986 2446 by the VMRC. The photo that was placed before, in 1991, apparently that one dock 2447 was constructed, I don’t know when, it was not constructed in 1986, or if it was, it was 2448 not constructed with the approval of the VMRC. My point is, that to make the statement, 2449 that in 1995, there was just some minor addition, and it didn’t change the use because 2450 there are some boats there, is erroneous, because that wasn’t what was approved. 2451 Furthermore, there was a question asked of one of the preceding individuals, that if 2452 more docks or more piers were required to protect the marina, if what’s there today is 2453 not sufficient, would there be a problem with putting more in there? Yes, I have a real 2454 problem with that, because that’s my river frontage. My property is being diminished 2455 because of these structures that can be seen from my river frontage. What gives an 2456 adjacent property owner the right to construct structures in property or an extension of 2457 property that’s not theirs. I have a real problem with that; I don’t think there’s any legal 2458 grounds for it. 2459 2460 Mr. Kirkland - You ever been duck hunting? 2461 2462 Mr. Wolpert - No sir, I’m not a hunter. 2463 2464 Mr. Kirkland - You ever seen duck blinds built in front of people’s property? 2465 2466 Mr. Wolpert - Yes, but they typically get approval. 2467

July 26, 2001 54 2468 Mr. Kirkland - They get approval by the Game and Inland Fisheries, not by 2469 the property owner. They can stick a duck blind in front of your place. 2470 2471 Mr. Wolpert - Does that mean I can build a dock in front of the marinas? 2472 2473 Mr. Kirkland - No, but I’m saying there are certain things that happen on the 2474 water that doesn’t affect landowners, that you can’t control. 2475 2476 Mr. Wolpert - But there’s got to be a point of reasonableness though. How 2477 far can you take it? 2478 2479 Mr. Kirkland - I know. I know. That’s true. 2480 2481 Mr. Wolpert - Somebody asked the question. In my mind, there’s zoning 2482 requirements, there’s setbacks, that have to be met. 2483 2484 Mr. Balfour- Can you point out your property line, roughly, on that 2485 photograph? 2486 2487 Mr. Wolpert - My property line is approximately …………… 2488 2489 Mr. Blankinship - It shows on this one. Try to keep them all oriented the same 2490 way now. 2491 2492 Mr. Balfour- I see, that property line is that line right to the right. 2493 2494 Mr. Wolpert - Right. Again, when we got the drawing in 1986, that end of 2495 that dock met the end of our property line, so we’re saying. “hey, that’s fair; that’s the 2496 river frontage that belongs to the marina. We have no objection.” But again, what was 2497 built, at some point after 1986, is not what was on the drawing that we were provided 2498 and that the VMRC approved. 2499 2500 Mr. Wright- But it wasn’t built after 1995? 2501 2502 Mr. Wolpert - Apparently from that photo, we were of the impression that 2503 all 3 extensions were built in 1995. 2504 2505 Mr. Wright- You mean the second big shed there to the left? 2506 2507 Mr. Wolpert - That shed was built in 1986. Probably the permit was 2508 granted in December of 1986. So that entire shed was built in the first part of 1987. So 2509 that depicts that shed…………. 2510 2511 Mr. Balfour- Which you have no objection to, because you saw the plans 2512 and understood that it came to your boundary line. 2513

July 26, 2001 55 2514 Mr. Wolpert - Correct. Correct. If I could now go back to my previous 2515 items, which I can’t seem to find …………… There was some discussion about the 2516 County not having jurisdiction over river rights, etc. Approximately 4 years ago, 2 miles 2517 up river, there was a proposed marina. It was called the Newstead Landing. There was 2518 extensive community objection, etc. There was all kinds of – zoning was involved, 2519 building department – all different facets of the County were involved. I think it’s pretty 2520 clear that the County does have jurisdiction, and for individuals to say that the County 2521 doesn’t, this is not correct. 2522 2523 Mr. Wright- We’re talking about back in 1960 and 1986; I’m not talking 2524 about 1990. 2525 2526 Mr. Wolpert - The VMRC, as far as the additional finger piers – again I 2527 want to reiterate what I said last time, they gave “conditional approval,” they gave 2528 approval based on settlement of the Riparian River Rights. They did not give carte 2529 blanche approval, so yes it’s approved, but no it isn’t, until the Riparian Rights get 2530 resolved. One thing that I would like to bring up, in 1986 when the permit application 2531 was made by the marina, if I could put a copy of the actual VMRC application 2532 instructions up on the board there. It clearly says that the VMRC does not have entire 2533 jurisdiction. It says, “Some health departments, local agencies, do not use this 2534 application. You should contact them for information regarding the requirements. Even 2535 though one application has been filed, separate permits are often required from 2536 regulatory agencies. Before you begin work, make sure you receive authorization or 2537 waivers from each agency.” If I look at the application again that we received a copy of, 2538 from 1986, of the VMRC application, essentially the marina has indicated on their 2539 application that they did not discuss this with any local, state, or federal regulatory 2540 agencies. Again, this is the 1986 boat shed. My point I’m trying to make here is, there 2541 have been statements in that, yes we have been getting permits, we’ve been getting 2542 authorization by the County. By their own admission, they haven’t. 2543 2544 Mr. Wright- But they did get it in ’86. 2545 2546 Mr. McKinney- They got a building permit on it. 2547 2548 Mr. Wolpert - According to this, they didn’t. 2549 2550 Mr. McKinney- You can say that, but they did get one. 2551 2552 Mr. Wolpert - I haven’t seen that. From the previous letter that I’ve gotten 2553 from the County, from a building official, it says that a permit would be required. “My 2554 investigation concludes that a building permit is required for the last boat shed and 2555 adjoining finger piers that are located along the western end of the site.” The last boat 2556 shed is this 1986 structure, so my assumption was that if the building official says he 2557 needs one, he never got one. 2558 2559 Mr. Blankinship - I don’t believe we have a building permit for the 1986 boat

July 26, 2001 56 2560 shed. We have some permits for work done on the land – decks, electrical work, a shell 2561 building – that were on the land part of the marina. I don’t know that we have ever 2562 issued a building permit for any construction in the riverbed. 2563 2564 Mr. McKinney- But as the Planning Director said in the opinion, he “didn’t 2565 have the right at that time, ……………..” Therefore it was done with the building permits 2566 they’ve got, as he stated, went through the departments, in ’86, or what year I don’t 2567 know, but it was prior to the PUP requirement, it was a conditional use. 2568 2569 Mr. Kirkland - ’91,’94, and ’96. 2570 2571 Mr. Wolpert - Again, I’m going by the information that I have on hand, that 2572 it doesn’t appear that the required permits and zoning requirements that were in 2573 existence and that time were met. 2574 2575 Mr. McKinney- Mr. Wolpert, let me ask you a question. Would you like them 2576 to commit to you that no other improvements will be done, or to your satisfaction, from 2577 here on out? What would you like? 2578 2579 Mr. Wolpert - What I would like, that would be item 1. Item 2 is, I would 2580 like those structures which are in my river frontage, to be removed. 2581 2582 Mr. McKinney- You’re talking about the dolphins………… 2583 2584 Mr. Wolpert - The dolphins and the extensions that you see there. I 2585 understand the marina’s concern, and I’ve seen it. When there’s floods, there’s a lot of 2586 debris that comes down the river. But my point is, if there’s protection required, of the 2587 structure, what gives one property owner the right to install some protective measure on 2588 river frontage that’s not his? If protection is required, so be it, then that protection 2589 should be on his river frontage. 2590 2591 Mr. McKinney- That’s what we’re up in the air about. We don’t know 2592 whether it was his or not, because of what’s in it, it was done long ago. Apparently it 2593 was grandfathered in. What I’m asking you, if you get some kind of agreement with 2594 them, that they will absolutely do no more, would that satisfy you, I mean not totally, but 2595 would that help? 2596 2597 Mr. Wolpert - That would definitely, the expansions, the property can’t 2598 withstand any more, and I’m dealing with all the traffic. 2599 2600 Mr. McKinney- Could we look at it from a standpoint that, there were a lot of 2601 mistakes made, it was grandfathered in apparently, you could look at it that way. It’s 2602 like, the County may have made a mistake on your tax assessment back in 1986, they 2603 would come back on you and send you a bill for $10,000 and say “we made a mistake.” 2604 And you say, “no, you’re not going to do that; I’m grandfathered in; you’re not going to 2605 do that to me.” We’ve got not quite the same scenario, but we’re trying to make

July 26, 2001 57 2606 everybody happy if they would come to you and say, “Mr. Wolpert, we’re all sorry it 2607 happened, this will not happen again, in any way,” and you got that in writing? 2608 2609 Mr. Wolpert - That would go a long way. There’s a few other issues that 2610 go along with zoning, that I would like addressed, the traffic, parking on my property, 2611 speeders, some other things that I feel like zoning process would identify and would put 2612 constraints on. 2613 2614 Mr. McKinney- I know you brought up before, about the parking on your 2615 property, that there could be signs put up, towing enforced…………… 2616 2617 Mr. Wolpert - But there’s got to be an enforcement. Heretofore, when I’ve 2618 made objections years ago, it was “I can’t control people; we don’t live right here.” It 2619 was kind of, there wasn’t any bite to the enforcement, and I don’t know how you get 2620 around something like that. 2621 2622 Mr. McKinney- Well you’re on private property; you chose to put up “private 2623 property, no trespassing” on either side of this descriptive easement that comes 2624 through, that goes to the marina, and somebody parks on that property, you can call 2625 whatever towing service you want and say, “come get this thing,” they like to tow these 2626 away, because they get a big fee for it.” 2627 2628 Mr. Kirkland - Just make sure you let the police department know first. 2629 2630 Mr. Wolpert - And there’s one other thing that I’d like to bring up, is that 2631 one of the things that we’ve been concerned about over the years, is that it is private 2632 property, and here we have a business whose patrons are going across our property. 2633 We feel like we have a real liability, should somebody have an accident on our property, 2634 if somebody gets, God forbid, seriously hurt. There’s a lot of personal injury attorneys 2635 out there. They’re all looking to make a buck. That’s something that really concerns us. 2636 Some sort of indemnification, something that will hold harmless. I think, even from the 2637 County, just 3 weeks ago I came home one night, and there were 3-4 Henrico County 2638 emergency vehicles parked on the top of the hill. In fact they were blocking my 2639 brother’s access to his house, because they were in the middle of the road, but they 2640 were looking for a drowning victim, who eventually was found the following day, but it 2641 just kind of hit home, what happens if somebody gets hurt down there, and here you 2642 have a marina, or business, that, for whatever reason, has been grandfathered in, or in 2643 existence and is not in compliance with statutes that were in place as far back as 1960. 2644 If something like that were to happen, what would be the outcome of some personal 2645 injury suit if they start digging in and trying to get more out of nothing? 2646 2647 Mr. Balfour- Have you ever tried to get an injunction against them? They 2648 are their invitees; if they come on the property if there’s an injunction on it, you can take 2649 them back to court. 2650 2651 Mr. Wolpert - That’s true. Part of this is, we’re just private owners, and

July 26, 2001 58 2652 we’re not trying to make this a job to monitor other people’s patrons. We’re looking to 2653 not be sued at some point in the future. We’re looking at not having to see speeders 2654 running up and down, having to pick up litter. This is Battlefield Park. I don’t know if 2655 any of you have ever been down there, real quiet, picturesque, very slow pace of life, 2656 and that’s what we like, and it’s been that way for a lot of years, but as the marina has 2657 started to expand, there’s been more traffic; there’s been more people going down, 2658 kicking the tires, and it’s just, one of these days, something’s going to happen. I think 2659 we have a lot of liability; I think the County has a lot of liability. 2660 2661 Mr. McKinney- This is a private road that comes in there, right? Prescriptive 2662 easement, or is it a deeded easement? 2663 2664 Mr. Wolpert - I believe it’s a deeded easement. And it was in existence 2665 when my parents bought this property in 1974 I believe. And that easement was in 2666 existence from a previous property owner. 2667 2668 Mr. McKinney- Maybe some of our learned attorneys could tell us what 2669 would happen if somebody got hurt on a deeded easement. 2670 2671 Mr. Wright- I don’t think that’s our concern. That’s a legal issue, like a lot 2672 of these other things we’re talking about, are legal issues, which maybe are of real 2673 concern, but that’s not what’s before this Board. 2674 2675 Mr. Wolpert - Let me see if I had any other points here I wanted to cover. 2676 One last thing, if I could get, one of the other statements that were made, I believe it 2677 was last time, was that the marina’s been in continuous existence since 1940 or 2678 something like that. Our research from the County records, the first piece of property 2679 that was bought by the marina itself, was in 1950. This particular parcel was bought in 2680 1970 by Mr. Parker and Mr. Harris, who are the owners of the marina. I don’t 2681 understand the logic of a continuing existence when you’re adding property, to say that 2682 you’ve been there, you want to get grandfathered in, but yet you buy a piece of property 2683 in 1970, ten years after the zoning law, or the process that the County has established 2684 is put into place, and then you can say, “well, we built something in ’86, and we’re going 2685 to grandfather this in, because the marina has been here this whole time.” Well, that to 2686 me, doesn’t hold water, and to this day, that piece of property still has not been 2687 absorbed into one of the other parcels and is in the name of the marina. It’s still in the 2688 name of the 2 owners of the marina, so it’s still identified as a separate parcel in the tax 2689 records. I believe that’s all I had. Were there any questions for me? 2690 2691 Mr. Kirkland - Anyone have any questions of Mr. Wolpert? Your brother 2692 have anything to say? 2693 2694 Mr. Wolpert - I don’t think so, no. Thank you very much. 2695 2696 Mr. Kirkland - You’re welcome. All right, Mr. Moore, you’re on deck, unless 2697 there’s anybody else on the other side.

July 26, 2001 59 2698 2699 Mr. Moore - Mr. Chairman, there are a few points I’d like to make. First, 2700 with respect to that other parcel that Mr. Wolpert just showed, I say he built on it. I don’t 2701 see how that’s considered part of the marina. 2702 2703 Mr. Balfour- Say that again. 2704 2705 Mr. Moore - I don’t quite understand the issue that was being raised 2706 about this other parcel of land. From the picture there, there’s nothing there. 2707 2708 Mr. Balfour- I think what he’s saying, is he bought the land, and they took 2709 something that’s grandfathered in on the old piece of land and used that to bootstrap 2710 themselves up by expanding the marina in front of the new piece of land they bought 2711 after the Code went into effect. And he’s saying they did it, and nobody objected. 2712 2713 Mr. Moore - I’ve never seen it in any zoning ordinance, and I’m not aware 2714 of anything that governs this, that says that one may only put improvements in water 2715 directly in front of his property. And I think the fact the VMRC, as recently as February 2716 of this year, approved the new extensions that we’re talking about today, that are not in 2717 front of this property, suggests that that’s not a requirement, that you put features in the 2718 water………….. The water’s owned by the state of Virginia; it’s not owned by any 2719 individual, and I’m not aware that any…………… 2720 2721 Mr. Kirkland - Some people beg to differ on that point. 2722 2723 Mr. Wright- Depends on where your water line is, but if he’s beyond the 2724 mean water line………….. 2725 2726 Mr. Moore - He’s docking boats there; he’s got 8 or 10 feet of water 2727 there…………. 2728 2729 Mr. Kirkland - So a permit was granted in February for these finger docks? 2730 2731 Mr. Moore- Here it is, granted for all of them. And it was late, and they 2732 were fined for it, and it’s a conditional improvement, as Mr. Wolpert states. 2733 2734 Mr. Blankinship - Yes, conditional on ironing out this issue of the riparian 2735 rights. 2736 2737 Mr. Moore Not the issue of the nonconforming use however. So I would 2738 simply say that, I don’t know whether the Wolperts appeared before VMRC or not, 2739 perhaps they did, but apparently they don’t feel, well they feel that a court needs to 2740 determine whether or not there’s an issue with respect to extending improvements in 2741 front of someone else’s property, and I don’t think that that’s an issue before this Board 2742 either. The issue before this Board is “can those improvements that have been put in 2743 place to protect what else is there, be allowed without requiring a provisional use

July 26, 2001 60 2744 permit?” But I will also say, to address something Mr. McKinney raised, an issue he 2745 raised, is that, my clients are willing to commit that they will not extend this facility west 2746 of where the current improvements are, unless something were to happen to them, that 2747 they’d want to replace those, but they’ll commit to that in writing, to the Wolperts, that 2748 nothing will be built west of there. 2749 2750 Mr. Balfour- Is the case still pending that’s referred to in this letter? 2751 2752 Mr. Moore - Yes it is still pending, but you know, Mr. McKinney asked that 2753 question, and I don’t know that that would satisfy them or not, perhaps if won’t, but 2754 we’re willing to make that commitment. 2755 2756 Mr. Balfour- Suppose it was a title requirement. It looks like those fingers 2757 are pointing west, 3 of them, and they’re there for protection primarily, even though you 2758 stick a couple of boats out there. If you turned them parallel, and only had 1 or 2, 2759 wouldn’t you get the same protection, and then he’d have less encroachment on the 2760 front of his property? 2761 2762 Mr. Moore- He’d have the same encroachment. 2763 2764 Mr. Kirkland - That’s what was there until they turned them the other way; 2765 that’s what I was saying earlier. 2766 2767 Mr. Moore - I don’t see that there’d be a material change there. That’s all 2768 I have, unless Board members have any other questions. 2769 2770 Mr. McKinney- So you’re saying that your client agrees, and will agree in 2771 writing, that there will be no more additions to the western end ………….. 2772 2773 Mr. Moore - It will not extend in the water to west of where it is now. 2774 2775 Mr. Kirkland - Mr. Marlles, may I ask you a question, and you all now are 2776 firmly under the understanding that you have jurisdiction of anything that goes on down 2777 there. And you will look very closely every time something happens down there. Thank 2778 you sir. All right, no further questions? That concludes the case. 2779 2780 Mr. Wright - I move that we reverse the Board’s decision, made in May, 2781 on the basis that there was information that I was not aware of, that didn’t come before 2782 the Board, on which I based my prior decision, and the fact that the County considers 2783 that as nonconforming persuades me to make that decision, with the idea that the 2 new 2784 walkways were not substantial enough to require them to get a PUP. 2785 2786 After an advertised public hearing and on a motion by Mr. Wright, seconded by Mr. 2787 McKinney, the Board reversed its earlier decision of May 24, 2001, on A-62-2001 2788 appeal, and affirmed the decision of the Planning Director with respect to

July 26, 2001 61 2789 nonconforming status of the Richmond Yacht Basin, 9950 Hoke Brady Road (Tax 2790 Parcels 284-A-3, 4 and 5). 2791 2792 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 2793 Negative: 0 2794 Absent: 0 2795 2796 Mr. Kirkland - I’ve got one more case I need to call here, the one we 2797 passed. 2798 2799 A -104-2001 HEZEKIAH WILKERSON requests a variance from Section 24-94 2800 of Chapter 24 of the County Code to build a sunroom at 4740 Glen 2801 Finnian Drive (Yahley Mill East) (Tax Parcel 229-5-A-4), zoned A-1, 2802 Agricultural District (Varina). The rear yard setback is not met. The 2803 applicant has 39 feet rear yard setback, where the Code requires 2804 50 feet rear yard setback. The applicant requests a variance of 11 2805 feet rear yard setback. 2806 2807 Mr. Kirkland - Mr. Blankinship, I was under the impression that possibly this 2808 needed to be deferred. 2809 2810 Upon a motion by Mr. Nunnally, seconded by Mr. McKinney, the Board of Zoning 2811 Appeals deferred application A-104-2001 for a variance to build a sunroom at 4740 2812 Glen Finnian Drive (Yahley Mill East) (Tax Parcel 229-5-A-4). The case was 2813 deferred for 30 days, to allow the presence of an applicant or representative to 2814 present the case, from the July 26, 2001, until the August 23, 2001, meeting, 2815 2816 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 2817 Negative: 0 2818 Absent: 0 2819 2820 Mr. Kirkland - We have some other items here, that we received in our 2821 packets. Approval of the 2002 Calendar, and some amendments to the rules. 2822 2823 Mr. Blankinship - Mr. Chairman, when we prepared your 2001 Calendar, 2824 because of the way the 5th Thursday fell in October, we moved September and 2825 October’s meeting up, and that allowed us to keep consistent time between meetings, 2826 even though the week of the month that the meeting fell changed. In 2002, we’re 2827 fortunate that August is the month that has 5 Thursdays in it, which means we can keep 2828 September and October on the 4th Thursday, and still have good spacing of meetings to 2829 move November and December to the 3rd Thursday. So the only 2 dates that would not 2830 be the 4th Thursday, would be November 21 and December 19. 2831 2832 Upon a motion by Mr. Wright, seconded by Mr. McKinney, the Board approved moving 2833 the November and December meetings to the 3rd Thursdays, thus approving the 2834 proposed 2002 Calendar.

July 26, 2001 62 2835 2836 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 2837 Negative: 0 2838 Absent: 0 2839 2840 Mr. Kirkland - Okay, the last thing is the amendment thing that we received 2841 in the mail. 2842 2843 Mr. Blankinship - I’m going to address paragraph 2 of the proposed 2844 amendment first. We’ve been working for some time to get our computer system up to 2845 the point where we can generate these lists of adjoining landowners fairly quickly. 2846 We’ve finally gotten to the point where we can do that almost automatically now. As 2847 you know, the Planning Commission and the Board of Supervisors , the staff has done 2848 the adjoining landowner notification for them for many years. Yours are the only cases 2849 where the applicant is required to do that themselves, and I think that’s somewhat of a 2850 handicap for us, and it leads to a lot of deferrals, and there are just other problems 2851 raised by it. Now that we’re able to do it without incurring a lot of costs or a lot of staff 2852 time, I’d like to propose that you amend your rules so that the staff will do the 2853 notifications, rather than the applicant. 2854 2855 Mr. Balfour - So moved. 2856 2857 Mr. Blankinship - You can make a motion and get it on the floor. 2858 2859 Mr. Wright - I’ll second and get it on the floor. 2860 2861 Why are we changing it from 14 to 5 days? 2862 2863 Mr. Blankinship - Five days is what’s required by the Code. We had asked for 2864 14 so that the applicants could return their receipts to us 5 days prior, so that we could 2865 check over those. 2866 2867 Which Code? 2868 2869 Mr. Blankinship - The State Code. 2870 2871 Requires 5 days? 2872 2873 Mr. Blankinship - Yes sir. 2874 2875 I’ll tell you right not, that’s not enough. 2876 2877 Can we make it any broader? 2878 2879 Mr. Blankinship - If you want to make the rule 14, that’s fine. 2880

July 26, 2001 63 2881 If my neighbor’s going to do something, and I get 5 days 2882 notice, I haven’t got time much to do anything. I’ll hire a lawyer, and we’re already 2883 complaining about not getting things on time sometimes. 2884 2885 Mr. Blankinship - And I can tell you that it’s my intention to do it as soon as we 2886 can get the list generated. 2887 2888 I’m talking about the person who gets the notice, you get a 2889 little due process problem I think. 2890 2891 Mr. Blankinship - If you want to put 14 in your rules, there’s no reason you 2892 can’t do that. 2893 2894 Would that cause any problem with the staff? 2895 2896 Mr. Blankinship - No sir; we plan on doing them more than 14 anyway. 2897 2898 I just think it would be better public relations to give more 2899 notice; 5 days is a short ……………somebody could be on vacation, and it happens, 2900 and they’d never know about it. 2901 2902 I move we amend it then to be ………….. 2903 2904 Mr. Blankinship - We merely took that from the Code, and I have no objection 2905 to setting it at 14 …………… my only concern otherwise …………….. Mr. Kirkland had 2906 a question ………….. 2907 2908 The question I had, and I don’t feel particularly strongly about 2909 it, is, I notice the owners had to give certified or registered, and I don’t mean to be 2910 picking on the postal service, but all we’re going to require here is first class mail. 2911 2912 Mr. Blankinship - That again is copied out of the State Code. The Code 2913 requires the individual to do it certified, but if the County does it, we’re only required 2914 ………….. 2915 2916 I’m not saying that you wouldn’t do it any better than the 2917 owner; I’m more concerned about the mail service sometimes. 2918 2919 I guess the 14 days …………… I’ve had some that took 2920 more than 2 weeks to get to me. 2921 2922 Mr. Kirkland - Takes more than 2 weeks to get from Glen Allen to 2923 southside. 2924 2925 Who’s going to pay the cost of doing this – the applicant? 2926

July 26, 2001 64 2927 Mr. Blankinship - The County will. It’ll just be taken out of the $300 fee. My 2928 thinking is, that after we have about a year’s experience with this, and we have a more 2929 accurate feel, both for the staff time and the physical costs involved, then we would ask 2930 the Board …………….. 2931 2932 If we’re taking the costs away from the applicant, and putting 2933 it on the County, then what’s the problem with the applicant paying the $300 plus the 2934 postage fees? 2935 2936 Mr. Blankinship - We could do it that way. That would have to be determined 2937 by the Board of Supervisors; they’re the ones who set the fees. 2938 2939 Are the fees set based on a lot of things, I’m sure, but one of 2940 them would be the cost of administering the hearing to begin with. Run it up to $325 2941 and send it certified. 2942 2943 Mr. Blankinship - I was going to say, as soon as we have some more solid 2944 figures on how much it is costing us, and how much staff time this has added, we intend 2945 to at least approach the Board of Supervisors with the idea of amending the fees. They 2946 may choose not to do that, and of course it’s their money. 2947 2948 Do we have other notices in the County we do by first class 2949 mail only? 2950 2951 Mr. Blankinship - As far as I know, that’s how we do Planning Commission and 2952 Board of Supervisors – do you know Susan? 2953 2954 Ms. Blackburn - Yes, and they do a signed affidavit that they have been sent 2955 out. 2956 2957 Well the thing about this certified mail – some people won’t 2958 go pick it up. 2959 2960 Mr. Blankinship - That’s true. 2961 2962 I withdraw my comments. 2963 2964 What I do at my office when I do that, I mail them one first 2965 class and then send it certified to make sure they get it. A lot of people won’t go pick it 2966 up. 2967 2968 They think it’s a bill. 2969 2970 Mr. Blankinship - Yes, if they know it’s from the County, they might just leave it 2971 there. 2972

July 26, 2001 65 2973 That puts them at an inconvenience. They’ve got to go pick 2974 the thing up. 2975 2976 (unintelligible) 2977 2978 If the County’s working fine with first class mail and other 2979 types of notices, I say let’s go with it. 2980 2981 Mr. Kirkland - Mr. Blankinship, you say the last line that we’ve got here, 2982 “……..the Secretary may give such additional notice to persons ………,” that’s been in 2983 there already? 2984 2985 Mr. Blankinship - Yes, that’s why it’s not bold or italic. 2986 2987 Mr. Kirkland - As long as it doesn’t cause a problem with somebody saying 2988 they didn’t get notified. 2989 2990 Mr. Blankinship - Well, we’re not going to use that just willy-nilly, but there are 2991 cases where, looking at the map, somebody is 5 feet off of adjoining, we might choose 2992 to notify that person. Also, when I was researching that, I just happened to glance at 2993 the top of another page of the rules, and saw that we don’t actually follow the order of 2994 the regular meeting, as prescribed in the rules, so I didn’t see any reason not to spell 2995 that out and have this amended while we’re going here. That’s what paragraph 1 is 2996 about there. 2997 2998 That looks like it just cleans it up some. 2999 3000 Mr. Kirkland - Okay, let’s have a motion here. 3001 3002 Mr. Blankinship - Motion’s already on the table. 3003 3004 Motion’s already been made and seconded. 3005 3006 Mr. Kirkland - All those in favor, say aye. All opposed. We got it. 3007 3008 Mr. Blankinship - Mr. Balfour’s been reappointed, I don’t know if everybody’s 3009 aware of that. 3010 3011 Upon a motion by Mr. Balfour, seconded by Mr. Wright, the Board approved the 3012 Amendment to the Rules Regarding Notice to Adjoining Landowners and a change in 3013 the order of business regarding the approval of minutes. 3014 3015 Affirmative: Balfour, Kirkland, McKinney, Nunnally, Wright 5 3016 Negative: 0 3017 Absent: 0 3018

July 26, 2001 66 3019 There being no further business, and on a motion by Mr. Wright, seconded by 3020 Mr. McKinney, the Board adjourned until August 23, 2001, at 9:00 am. 3021 3022

3023 Richard Kirkland,

3024 Chairman

3025

3026 Benjamin Blankinship, AICP

3027 Secretary

July 26, 2001 67